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IlETRA-OTIOISr 



OF BEFJ.E0TI0N8 CONTAIN BT) IN A 



COiNGliESSIONAL REPORT 



AND RELATING TO A CASE PKOSKCUTKD BY 



E. DELAFIELD SMITH, 



United States District Attorney at New York 
From April 4, 1861, to April 14, 1865. 



WITH THE FACTS AND DOCUMENTS. 



HETH A.CTION 



OF KEFLECTIONS CONTAINED IN A 



CONGRESSIONAL REPORT 



AND RELATING TO A CASE PROSECUTED BT 



E. DELAFIELD SMITH, 



United States District Attorney at New York 
From April 4, 1861, to April 14, 1865. 



WIffH THE FACTS AND DOCUMENTS. 



^^°-^«.,:;, 



ieb fork : 

JOHN W. AMERMAN, PRINTER, 
No. 47 Cedar Street. 

1867. 



^^% 



A 



OOlsTTENTS. 



PAGE 

Introductory Note, 5 

Retraction : — From Mr. Hulburd, 7 

Mr. Le Blond, 9 

Mr. Rollins, 10 

Mr. Lazear, 10 

Letter from Attorney General Speed, , 11 

Letter from Attorney General Bates, 13 

The Chairman of the Committee to Mr. E. Delafield Smith, 15 

Statement of Mr. E. Delafield Smith in reply, 17 

IN THE APPENDIX. 

The Chairman of the Committee to Mr. George P. Nelson, 43 

Mr. George P. Nelson's reply, 43 

Abstract of Record of Case in the Eighth Circuit before Mr. Justice Davis, 

of the United States Supreme Court, 47 

Letter from the Clerk of the Indiana Courts, 48 

Law, Practice and Precedent, Note, 49 

Note from Mr. Justice Nelson, 51 

Certificate of the Comptroller of the Treasiiry, 51 

Affidavit of Assistant District Attorney Andrews, 51 

Note from Mr. Joshua P. Bailey, 53 

Affidavit of the Stenographer of the Committee, 53 

Notes from Mr. Betts, Clerk of the United States District Court, New 

York, and from the Assistant Clerk, 54 

Notes from Mr. Chambers and Mr. Alexander Fullerton, 55 

Letter from Judge William Fullerton, 56 

Papers and Letters of Mr. Mudgett, 57 

Statement of Assistant District Attorney AUen, 60 



INTRODUCTORY NOTE, 



In 1861, during the first montli of Mr. Lincoln's accession to tlie Presi- 
dency, I was appointed district attorney of the United States at New York. 

Receiving manifestations of confidence from every department of the 
government, I held the office four years ; and in 1865 was assured, authoritative- 
ly, that a re-appointment would be a matter of course. Tliis I desired ; less 
for the diminished emoluments which would follow the war, than as a re- 
cognition of faithful public service. 

But during the few weeks which followed Mr. Lincoln's second inaugura- 
tion, a publication in a newspaper disclosed the fact that a congressional 
committee, misled by two ex parte statements, had embraced in a report not 
otherwise relating to my oflBce, a paragraph reflecting upon me with regard 
to one of the thousand cases which I had prosecuted during the eventful 
period then drawing to a close. 

Assuming that an administration which I had earnestly sustained, would 
not condemn without a hearing ; I was attending to my official duties 
in New York, when, without notice to me, the then recently appointed 
attorney general, to whom I was personally unknown, and who erroneously 
presumed that I had been heard by the committee in answer to the statements 
in question, recommended my displacement. The President, accordingly, 
signed the appointment of another person ; and this, without investigation, 
overwhelmed as he was with the culminating events of the war. 

A few hovirs subsequently, when the case was understood by Mr. Lincoln, 
lie attempted my retention in office by authorizing the recall of the com- 
mission by which I was displaced. The mail, however, had put it beyond 
his reach. 



6 INTEODtrCTORT NOTE. 

The report of a congressional committee, followed by a removal, was not 
to be effectively controverted by a newspaper statement from me. I therefore 
silently resumed my ordinary professional practice ; pained that any act of 
mine should be called in question, but confident that my exoneration would 
yet come through sources of corresponding authority. 

To another committee of Congress afterward sitting in New York, I applied 
for a full investigation. This application was granted ; and an examination 
was set on foot, when the chairman of the former committee, discovering 
that injustice had been done, entered, himself, upon a thorough pursuit of the 
facts. With a sense of right which does him equal honor, one of the authors 
of the accusatory statements, who had testified under a misapprehension 
which he explains, contributes, by his own evidence, to a true and just con- 
clusion. 

The result is, the reflections upon me appearing in the report referred to 
are wholly retracted by the members of the committee who signed it. And 
in the Same spirit of justice, the attorney general who acted upon the report 
has repaired the injury to the extent of his power. 

The retraction of the chairman of the committee and the concurring 
declarations of his associates occupy the first place in the ensuing pages. 
They are followed by two letters, one from Mr. Speed, attorney general 
at the time of my displacement ; the other from Mr. Bates, who held that 
position during nearly the whole of my official term. 

My own statement is contained in a letter to Mr. Hulburd, dated June 5, 
1867, written in reply to inquiries addressed to me by him. It is accompa- 
nied by documents which will be found in the appendix. 

New York, November 27, 1867. 

E. Del AFIELD Smith. 



FROM Ir. HUIBURD, CHAIRMAN OF THE COMMITTEE. 

St. Laweence County, N". York, 

Brasheb Falls, July 1, 1867. 

Hon. E. Delapield Smith, 

Dear Sir: 

As an act of simple justice, I feel bound to say, that the im- 
pressions produced upon my mind by the statements from Mr. 
George P, Nelson and Mr. Benjamin F. Mudgett, before a con- 
gressional committee of which I was chairman, in relation to your 
official action in the Mercer confiscation case, have been removed. 
The. facts and explanations recently communicated to me by Mr. 
Nelson, verified by his oath, altogetlier change the whole aspect 
of the matter. If the committee, of which I am again the chair- 
man, in the present congress, were composed of the same mem- 
bers, I should certainly submit these corrections to them. Under 
the circumstances, however, I feel that your vindication is due 
from me, particularly as I was the author of the report of the 
former committee. 

So far as I am concerned, and in this I think I may also speak 
for my associates, the statement of Mr. Mudgett would not, as 
it stood, have been deemed such as to call for the notice it re- 
ceived, but for the state of the case afterwards presented by Mr. 
IsTelson, and now explained. 

It is clear that in demurring to proceed ujjon Mr. Nelson's 
verbal application, you acted in accordance with the tenor of the 
general instructions in your hands at the time, and with your 
own views of the law which a subsequent judicial decision con- 
firmed. It is equally clear that when, after the lapse of months, 
Mr. Mudgett filed his written information, and although receivino- 
the same discouragement insisted upon proceedings, you acted 
in good faith and without expectation of benefit to yourself or 



8 FROM ME. HULBURD. 

to any one associated with you, in undertaking the case at his 
instance, and could not with propriety have pursued any other 
course, even if the circumstances had not naturally erased the 
first call from your memory. 

The sworn statements of yourself and others, with the records 
and documents by which they are sustained, show that the mode 
in which you prosecuted the case, and the circumstances under 
which the information money was decreed, were unexceptionable. 
The proceedings were evidently conducted with uprightness and 
ability ; and the practical result in this case, and in others which 
it was the means of setting on foot, appears to have been to the 
advantage of the government. The portion adjudged to the 
United States was guarded by you with scrupulous zeal, even to 
the extent of protecting it from sharing in some of the necessary 
expenses of the suit. 

The fees certified to you by the court are shown to have been 
paid into the treasury of the United States, leaving your only 
compensation that received from the information money. Shared 
as that was by other persons connected with the origin or pro- 
gress of the proceedings, and these laws being, in the language 
of a distinguished judge, "new and u.ntried," and the suit itself 
a pioneer case, hardly more than an experiment of doubtful issue 
— the fee actually realized by you was by no means unreasonable 
in amount ; and whether so or not, it is amply proved to have been 
voluntarily paid, and no one can complain of it. Its receipt was 
not j^rohibited by the letter of any law, and seems to be fully 
sanctioned by public policy as recognized in several statutes. It 
was not offered until after you had obtained judgment, nor paid 
until the jiroceedings were substantially closed ; and under the 
facts now disclosed it could have had no influence unless to pro- 
mote additional diligence for the government and its informer, 
whose interests were identical. It did not come from an adverse 
party, nor was it by any means a gift of a defendant to a law offi- 
cer of the government upon the settlement of a suit, or the like, 
which he may have advised. PVom cases of that character, 
which have sometimes attracted our attention in other places, 
this is broadly distinguished. Whatever varying circumstances 
may attend those cases, this is in no respect pai'allel. 

Without going into further particulars, I am free to say, that 
the character you bear for honor and integrity in your oflicial, 



FEOM ME. LE BLOND. » 

professional and personal relations, will not suffer in the minds 
of those who fully examine, as I have now had the opportunity 
to do, all the facts surrounding this case. Whatever the report 
presented by me as chairman of the committee might have con- 
tained, I should not hesitate to repair an injustice if (however 
unwittingly) I had participated in its perpetration ; but I am 
relieved from all possible embarrassment in this respect, as the 
report purported to be and was " without comment," and simply 
gave the facts as they were made to appear before the committee. 

Among all the matters brought before the committee during 
your long term of office, (and they were neither few nor unimpor- 
tant,) this was the only one in which any reflection was cast upon 
you. That fact may well be a subject of pride with you and your 
friends, in view of the vast interests confided to you in prize and 
other cases, and imder the laws for the suppression of the slave 
trade, which you prosecuted with vigor and success. 

"While my position has compelled me to incur odium in expos- 
ing abuses, (and from that duty I have not flinched,) yet at all 
times I have intended and endeavored to be just ; and I am 
always ready and willing to recognize meritorious public services, 
and, Avhen proper, j)refer to commend rather than censure. 

It should be borne in mind that congressional investigating 
committees are frequently censured for testimony produced before 
them, reflective in its character, yet susceptible of explanation, 
as in your case, and still the exculpatory circumstances may tar- 
dily, if ever, come before them. ' 

You are at liberty to use this letter in any way you may see 
fit. 

Yours very truly, 

Calvin T. Hulburd. 



FROM Mr. LE BLOND, OF OBIO. 

I deeply regret that my name should have been attached to 
the report made to Congress in 1865, in which, without notice to 
him and imder an entire misapprehension of facts, blame was 
thrown upon Hon. E, Delafield Smith. Mr, Smith is more than 
exonerated by the papers and proofs now before me, and which 
are mentioned in the recent letter of Mr. Hulburd, which I fully 



10 FROM ME. E0£LES"S AND ME. LAZEAE. 

t 

subscribe to. An honorable distinction was won by him by the 
manner in which the duties of district attorney of the United 
States at New York were discharged during the four years of the 
war ; and as great wrong was done him in the report, I regard it 
a duty as well to the public as to him to unite with my late col- 
leagues in making all the reparation in our power. 

F. C. Le Blond. 
Celina, Ohio^ Sept. 10, 1867. 

FROM Mr. ROLLINS, OF NEW HAMPSHIRE. 

CoNCOED, N. H., July 27, 1867. 
Having carefully examined the evidence, including official re- 
cords and other documents, referred to by Mr. Hulburd in the fore- 
going letter of the first instant, lam satisfied that great injustice 
was done Mr. Smith in the report, and I heartily concur in the 
views now expressed by the chairman of the committee. The 
original testimony relating to the then district attorney was 
taken by Mr. Hulburd during my absence. This case is entirely 
difterent from others, involving payments to government officers, 
which we have investigated elsewhere, and cannot be confounded 
with them. 

E. H. Rollins. 

FROM Mr. LAZEAR, LATE OP PENNSYLVANIA. 

WiNDSOE Place, 

Baltimoee, Aug. 26, 1867. 
Having been but occasionally 2iresent during the examination 
in New York, but having entire confidence in the ability and integ- 
rity of the chairman, Hon. C. T. Hulburd, I acquiesced in and 
signed his report. Having the same confidence in Mr. Hulburd 
at this time, I take pleasure in expressing my belief in the justice 
and correctness of his letter of 1st July last. 

J. Lazeae. 

Note. — The full committee consisted of nine members. The four who 
signed the report, and who, in the written declarations above, have retracted 
the reflections it contained, are politically divided as follows : Republicans, 
Mr. Hulburd and Mr. Rollins ; Democrats, Mr. Le Blond and Mr. Lazear. 
The report was made at the close of the second and last session of the 38th 
Congress, which expired March 3, 1865. 



ATTORNEY GENEKAi SPEED. 11 

FROM MR. SPEED, OP KENTDCKY. 

Washington, Auc/. 27, 1867. 



Dear Sir: 



When I became attorney general in 1864,* you were the dis- 
trict attorney for the southern district of New York. During 
the winter of 1864-5, rumors reached the office of the attorney 
general that an investigating congressional committee were 
taking evidence that would convict you of improper official and 
professional conduct. A short time after, the testimony taken 
before the committee was published in the New York papers. 
Taking it for granted that you had full notice and opportunity 
of explanation before that committee, I promptly, and without 
notice to you, advised your removal, and you were removed and 
the office given to Mr. Dickinson. My recollection is, that the 
President, Mr. Lincoln, took my recommendation for a change, 
Avithout himself looking into the report. 

Since my arrival here, I have read with pleasure a letter to 
you from Mr, Hulburd, in which he retracts the reflections iipon 
you, made in the report upon which I acted. The letter is 
highly creditable to Mr. Hulburd's sense of honor and justice. 
But for the report of the committee, of which Mr. Hulburd was 
chairman, and upon which I acted, you would have been con- 
tinued in the office you held. 

The same sense of justice that induced Mr. Hulburd to write 
the letter in question compels me to write to you this. Having 
wounded the official and professional pride of a gentleman, it 
affords me pleasure to undo, as far as I can, what was done by 
me to his injury. 

I am, sir, most truly. 

Your obedient servant, 

Jajsies Speed. 

Hon. E. Delafield Smith, 



* Mr. Speed succeeded Mr. Bates December 1, 1864, and was in office at 
the time of Mr. Lincoln's deatli. 



12 ATTOENET GENEEAL BATES. 



MR. BATES, OF MISSOURI. 

St. Louis, September 28, 1867. 
Hon. E. Delafield Smith, New York, 
Deae Sie : 

I regret, on your account as well as my own, the continued 
sickness which has hindered me from sending you, as early as 
otherwise I wovild, the letter which I promised concerning your 
hasty and ill-considered dismission from office. Though still 
very unwell, I send it now. 

During most of your time as district attorney, I was attorney 
general,* and as such charged by law with the supervision of 
your office ; and consequently, imless I neglected my own duties, 
I could not be wholly ignorant of the manner in which you habit- 
ually discharged yours. Your district, embracing the great city 
of New York, was burdened with an amount of business proper 
for your office larger and more various than any other district 
in the nation. And simple justice requires me to declare, that 
the manner in which you discliarged that vast amount of duty 
was generally, almost universally, to my entire satisfaction. 
The only instances to the contrary were some few, in which, by 
an overstrained courtesy, as I suppose, you obeyed certain 
irregular instructions issued from other branches of the govern- 
ment at Washington, touching the conduct of certain cases then 
pending. And these instances I considered less as your OAvn 
errors than as the faults of those who, without authority, assumed 
to direct your official action. Consequently I promptly corrected 
the irregularity as illegal and wrong in itself, and vexatious to 
suboi'dinate officers by subjecting them to conflicting orders 
coming from opposite authorities. 

Being myself charged with the general superintendence of the 
law business of the United States as administered in the courts, 
I Avas thankful to a district attorney whose orderly and method- 



* Mr. Bates entered the cabinet of Mr. Lincoln upon the first inaugura- 
tion, March 4, 1861, and resigned December 1, 1864, having held the office 
of attorney general three years and nine montlis. 



ATTORNEY GENERAL BATES. 13 

ical industry gave strength and plainness to the discliarge of 
official duty, and whose professional skill and ability insured to 
individuals, in the main, a fair distribution of legal justice. 

I know very little about the manner in which your ejection 
was in fact effected ; but I know something about the means by 
which such ends are sometimes manoeiivred through to a suc- 
cessful consummation. Your own case as far as I know it is a 
pretty fair sample. Somebody who had political influence enough 
to be felt by a committee of the House of Representatives, and 
who wanted the office for himself or friend " or to serve some 
party pur^^ose, applied to the committee with charges against 
the foredoomed victim. — No matter whether a charge implies 
any thing illegal or immoral, or only a lawful and justifiable 
act ; still it is a charge ; and surely an officer may be removed 
xipoji a charge. — The secret accuser brought before the commit- 
tee a few selected witnesses to prove the particular facts desired ; 
and the committee, or some of them, examined them, ex parte., 
in your absence, without any notice to you to enable you to 
confront and cross examine the Avitnesses against you, or by other 
witnesses to falsify or surchai'ge tli^ir statements. 

And upon this evidence, insufficient in its matter and surrep- 
titious in its manner, both the committee and the attorney 
general, obviously without any serious consideration of either 
the law or the justice of the case, leaped to the conclusion that 
you were a guilty man, and ought to be denounced as such and 
expelled from office. 

The attorney general so reported your case to the President, 
with his own advice for your promjDt dismission from office. 
The President, no doubt urgently pressed with great national 
affiiirs, could illy spare the time to investigate the particulars of 
your comparatively small and ]3rivate affiiir, and trusting in his 
own high opinion of the attorney general's learning and pro- 
bity, adopted implicitly his views of your case, and dismissed 
you accordingly. 

Lawyers and publicists, every man indeed who desires to see 
the public aots of the government supported by lawful and 
honest reasons, will be surprised to learn that the principal fact 
charged upon you by your accusers, and the only one which has 
not been subsequently formally repudiated and retracted in 
writing, was a charge which, supposing it fully made out in 



14 ATTORNEY GENEEAL BATES. 

lawful testimony, does not prove nor tend to prove the slightest 
degree of guilt on your part, as an officer, a lawyer or a man. 

I have read the letters, which you showed me, from Mr. Hul- 
burd, the chairman, and three other members of the committee, 
and from Attorney General Speed ; and from these, chiefly, sup- 
ported as they are by the other documents shown me, I learn 
that the only criminal matter of fact charged upon you, not 
already disowned and recanted, is in substance this : — That you 
were district attorney in Ncav York, and as such in charge of 
the prosecution of a suit at law, in which the United States and 
an individual had a common and concurrent interest, with no 
conflict nor opposition between them ; that the individual desired 
to have counsel of his own, personally charged with the care of 
his interests in the case ; that he chose you for his counsel, and 
that you accepted his retainer and received his fee. 

All the rest of the charges being waived and abandoned, tJiis 
is your only crime. And I give it as my deliberate opinion, 
that the fact charged upon you is no crime at all, but a fair and 
legal transaction, justifiable in morals and sanctioned by the 
usages of the profession andithe practice in the courts. 

This organized assault upon you before the committee, and 
before the President through the attorney general, I cannot 
help considering a conspiracy to rob you of your office, by first 
l)lackening your character. I make no charge of complicity in 
the dishonest trick. My only object in writing this letter is to 
vindicate your personal and professional character. 
Very respectfully, your friend and servant, 

Edwd. Bates. 

Note. — In printing the above letter, some passages at the close are omitted ; 
but those, only, which might be construed — although not so intended by 
the distinguished writer — as unjust to men who were misled to my injury, 
but who have deliberately endeavored to repair it. 



THE CHAIRMAN OF THE COMMITTEE TO Mr. E. DELAFIELD SMITH. 

St. Lawkence County, N. York, 

Brasher Falls, May 22, 1867. 

Hon. E. Delafield Smith, 

Sir : — Gentlemen with whom I recently became acquainted, and 
who manifested much regard for you, assured me that injustice 
Avas done you in a report made in 1865 by a congressional com- 
mittee of which I was chairman. 

Having learned from, them that Mr. George P. Nelson had in 
conversations made important explanations of his brief original 
statement, I addressed him a letter of inquiry. His answer is 
honorable both to him and to you, so much so that I am disposed 
to pursue the matter further. 

I would therefore thank you to read over the statements made 
to our committee by both Mr. Nelson and Mr. Mudgett relating to 
the Mercer confiscation case, and give me the facts with such ex- 
planations as you may deem pertinent ; adding, if you please, any 
documents or depositions which will throw light upon the matter, 
as far as you are concerned. 

Yours very respectfully, 

C. T. HULBURD. 



Mr. E. DELAFIELD SMITH 

TO 

Hon. CALVIN T. HULBURD. 



New Yoek, June 5, 1867. 

Hon. Calvin T. Hulbued, 

Sir : — In 1863, as district attorney, I conducted a suit to con- 
fiscate stock owned by the confederate general, Mercer, in the 
Minnesota Mining Company. A moiety of the proceeds was 
decreed by the court to an individual i^rosecutor. From that 
portion, through his free act, I realized a fee, which as a lawyer 
and advocate I had honorably earned, and which no reason, 
founded in law, in public policy, or in official and professional 
propriety, called me to refuse. Throughout the last two years 
of my term of office, all the incidents of the case were widely 
known ; and they elicited no audible criticism, until my appoint- 
ment to a second term became a supposed subject of considera- 
tion. Seized upon by persons then in the custom house of this 
city, a case which might justly have been cited to my credit, 
was perverted to my injury, and was overlaid with a complaint 
in substance as follows : 

First. — That without good reason, I omitted to prosecute the 
stock, when orally applied to by Mr. George P. Nelson, altliough, 
several months afterward, I proceeded against it uj^on the writ- 
ten information of Mr. Benjamin F. Mudgett ; and that I might 
and should have so managed as to secure to the government the 
entire proceeds of the confiscation. 

Second. — That the fee realized by me, as the prosecuting at- 
torney, was not voluntarily given, but exacted. 



18 ME. E.^ DELAFIELD SMITH 

These accusations were so secretly made and pursued, that 
they never came to my knowledge, until two ex parte statements 
relied upon to sustain them were published in a newspaper with 
an extract from your report. 

With regard to the alleged application of Mi-. Nelson, his 
testimony shows it was merely a brief call, which might easily 
be, as it was, forgotten. The surprise his statement caused me, 
when first read in a public journal, copied from the report, could 
be attested. 

AVhen Mr. Mudgett informed against this stock, I had no 
idea that any person had ever spoken to me concerning it. And 
even with Mr. Nelson's statement before me, I could not recall 
his visit. It is not strange, for applications of that nature were 
numerous ; my official duties were absorbing ; it appears that 
no memorandum was left by him, and that I made none 
undoubtedly because, for reasons hereafter given, I did not think 
a case could be maintained against stocks situated as those were. 
If the interview, as related, was not calculated to make an 
impression at all, it was still less likely to leave any in relation 
specifically to the Minnesota stock, for Mr. Nelson says he did 
not mention this alone, but spoke of it in connection, only, with 
that of several other companies. 

At the assigned time of this interview, I was predisposed to 
discourage such applications ; and neither at that period nor for 
long afterward, until this case was itself commenced, was a single 
suit for the confiscation of " rebel property" pending in my office. 
And why ? In August, 1 861 , Congress passed the first " confisca- 
tion law." Numerous suits were instituted under it ; but they 
were discontinued by direction of the government, and in a printed 
circular like prosecutions were discountenanced unless a clear and 
unquestionable case should arise. In July, 1862, the second law 
was enacted, enlai'ging the grounds of confiscation. The volume 
containing it was not received till late in the year. The President, 
by a written order, referred the enforcement of the two statutes 
to the attorney general, who subsequently wrote that he would 
issue instructions. As the proceedings were to conform to 
those " in admiralty or revenue cases,"* he occupied much time, 

* 13 JJ. 8. Stat., 591, § 7. 



TO HON. CALVIN T. HULBURD. 19 

during the winter of 1863, in corresponding with district attor- 
neys in the maritime districts, and obtaining statements of the 
prevailing practice in that class of suits. The preparation and 
transmission of the projDosed circular instructions were long 
delayed. In a printed form, they were finally received at 
my office, and were filed with other general communications 
from the dej^artments. They were laid before me by my assist- 
ant, when Mr. Mudgett's application was submitted to my 
consideration. The policy of confiscation, frowned upon in 
former instructions, was favored by these. By the former I was 
of course influenced at the period assigned by Mr. Nelson to his 
first call. When Mr. Mudgett urged his application to me, those 
were replaced by the later instructions.* 

Under these circumstances, Mr. Nelson would naturally find 
me, at the alleged time of his visit, indisposed to enter upon con- 
fiscation suits at all. But, moreover, even when, subsequently, 
Mr. Mudgett applied and followed up his application, and I took 
the subject into serious consideration, it appeared to me, as a 
lawyer, that the stocks in qiiestion could not be condemned in 
the courts of this district. Under these statutes, a seizure of the 
property was the foundation of the proceeding. The certificates 
of these stocks were not accessible, and the corporations were 
not created in this state. Although this company had in New 
York its transfer books and an ofiice for the transaction of busi- 
ness, it had no property or legal existence here. How was a 
seizure to be eflfected ? The laws did not provide for any pro- 
cess in the nature of an attachment by notice, as in suits under 
state laws to reach the credits and efiects of foreign corporations 
or non resident debtors. Yet the service of such a notice upon 
the company's ofiicers here, was the nearest approximation to a 
seizure possible. Mr. Nelson says, I expressed to him the 
oijinion that stocks so situated could not be confiscated. He 
therefore, as he states, withdrew without leaving any written 
information. If he had left one, it would have been filed and 



* Printed Circular, State Department, 1861, " to prevent seizure of pro- 
perty belonging to citizens of insurrectionary states, not warranted by law." 
— Circular Instructions, Attorney General's Office, 1863, concerning " proceed- 
ings to be had under tbe act of Congress of the 17th July, 1863, and the act 
of August 6th, 1861, commonly called the Confiscation Laws." 



20 MR. E. DELAPIELD SMITH 

recorded in a book. In that case, the suit, whenever prosecuted, 
would have proceeded upon the information first filed. Months 
afterward, Mr. Mudgett apj)lied with regard to one of the 
stocks, and the same opinion was given to him, first hy my 
assistant, Mr. Andrews, then by Mr. Allen, and again by me. 
But he repeatedly returned ; renewed his application ; filed an 
infi>rmation in writing, and insisted upon a prosecution. It was 
at last undertaken, biit more as a legal experiment than other- 
wise. The case stands first in the " docket of confiscation suits," 
As Mercer, notoriously, was a confederate general, the difticulty 
was technical; but being a question of jurisdiction, it was 
formidable. By a piece of good fortune, no defence was inter- 
posed. The company did not appear except to aid the pro- 
ceeding. The question of law did not arise, for judgment was 
obtained by default. But the point, if taken, would have been 
good, nevertheless, and fatal to the proceedings ; for in a subse- 
quent and similar suit, known as the " Wiley case," which, un- 
like this, was litigated, it was raised and sustained in spite of 
the eflbrts not only of myself, but of Mr. Evarts, Mr. Donohue 
and the present Judge Blatchford, associated with me in that 
case. I had, therefore, good foundation in law for my judgment 
that this stock could not be condemned. It thus appears that 
my omission to proceed upon the oral application stated by Mr. 
Nelson, was due to a well grounded legal opinion. The circum- 
stances show how natural it was his brief call should have 
escaped me. Why, long afterward, I undertook the suit at Mr. 
Mudgett's instance, is explained by the latter's persistency and 
the changed character of my instructions from Washington. 
How the legal obstacle failed to obstruct, is explained by the 
default. And that there teas an obstacle, is shown by the 
failure of a subsequent case which had the misfortune to be 
litigated. 

The idea that Mr. Nelson was put off and Mr. Mudgett en- 
couraged with a view to compensation, is disproved in the orig- 
inal testimony itself, where it appears he was not encouraged at 
all, and a contribution to my oftice was not intimated until long 
after the suit was instituted, nor, indeed, until after the court 
had directed judgment. Even then, both Mr. Allen and Mr. 
Mudgett agree that the proposition did not originate with me. 
If that object had been contemplated in commencing the suit, a 



TO HOIs', CALYIK T. HULBUED, 21 

Stipulation would have been sought at the outset. Mr. Mud- 
gett's aj)plication was not made a short, but a long, time after 
that stated by Mr. Nelson, and to both, when first applying, the 
same answer appears to have been given. One dropped the 
matter at once ; the other returned and persisted. I once saw 
a conjecture that Mr, Mudgett might have obtained his informa- 
tion from my office. But as proved in the original statements, 
it was given to him by a clerk of the company, who happened 
to be a fellow boarder. The suggestion "vvas a calumny refuted 
by the record itself 

All adverse inferences which had even an aj^parent founda- 
tion, derived their force from the bearing of Mr. Nelson's orig- 
inal statement. It is only recently I could bring myself to 
address him on the subject. I then said little more than was 
necessary to guide him in making, for himself, a thorough inves- 
tigation of the matter, in connection with his own recollections. 
I could not wish a more ample vindication than that contained 
in the facts and explanations now given by him.* Mr. Mud- 
gett's testimony itself does not establish, nor, upon its face, 
apparently, does it seek to show, any wrong on my part upon 
the government, himself, or any person. The stenographer of 
your committee says it apj^eared to make little impression when 
taken, and you assure me it would have been dismissed but for 
the construction placed iipon it when Mr, Nelson's statement 
was subsequently given. 

It has been said that when I finally determined to prosecute 
the case, I could have proceeded in such a way as to deprive 
the informer of any share in the proceeds. And assuming I 
could, it is asserted I ought. The existence of such a poAver or 
duty never occurred to me. The point was not one Mr. Mud- 
gett would be likely to raise. Overwhelmed with oflicial duties, 
I handed the case over to my assistant for prosecution, without 
discovering, upon such examination as I had given the two 
laws, room for such a suggestion. To Mr. Nelson, when he 
called, it seems no siich question had occurred ; for he said he 
" understood the informer was entitled to one half" 

The first law in terms devoted the proceeds to the United 



* See appendix, page 43. 



22 MR. E. DELJtriELD SMITH 

States and the informer in equal parts,* The second had no 
such provision, but left the first unrepealed, and simply went on 
to multiply the causes for which " rebel property " could be con- 
fiscated. It is a settled rule of construction, that where one act 
is followed by another which does not repeal the first, and both 
are in jmri materia., they are to be construed together, and effect 
is if possible to be given to every provision of each.f In the 
printed instructions of the attorney general, the two laws were 
treaied together. It is true, in the second act the words " for 
the use of the army " were inserted ; but they were nugatory, 
because all moneys realized to the government were to go into 
the United States treasury ;J there was no provision which could 
keep them separate from other funds. The practical result was, 
they were necessarily applied to general piirposes, and the army 
was sustained, not by such provisions as this, but by the entire 
resources of the country. If the clause in question be operative 
at all, it is begging the question to say it would appropriate not 
only the government's share, but also that of the informer, wliich 
the first act secures to him. 

The informer's claim involved a question not only of strict 
legal right, but also of jJublic policy. If the object of confisca- 
tion was to prevent and punish rebellion, the end could not be 
attained unless informations were induced by the hope of gain. 
If tlie i^urpose was to realize money from " rebel property," the 
records of the district attorney's ofiice show that knowledge of 
this case attracted other informations from which the govern- 
ment realized thousands of dollars in excess of what the court 
decreed to Mr. Mudgett here. 

Not, however, by any excei^tionable mode of prosecuting the 
case, but by the ordinary and regular operation of law, the 
informer obtained the fruits of his information. When, as the 
foundation of a suit, a libel or complaint is filed by the govern- 
ment, it is not verified. The system of pleading in the United 
States courts is liberal. Several suits in rem under similar stat- 
utes are not allowed. Where — as for instance under the revenue 
laws — goods may be foi-feited for either of several difierent causes 



* 13 U. 8. Stat, 319, § 3. 

f 19 Vin. Abr., 525, pi. 132 ; Bac. Abndg., Stat., 1, 3 ; 9 Cowen, 437. 

I 13 U. S. Stat., 591, § 7. 



TO HON. CALVIN T, HULBURD. 23 

and under either of several similar statutes, the district attorney 
pleads, not under one alone, but under all. If he take judg- 
ment by default, the forfeiture also is ^^nder all. If a defence 
be interposed, the forfeiture will be under one or two or all, 
according to the proofs.* So here. The libel, in mere routine, 
was drawn under the two confiscation laws, alleging, in the lan- 
guage of both successively, all the facts which either statute 
made ground of confiscation. This was in accordance with 
practice and precedent, f And it was right. For in the event of 
a defence, we might fail under one law and succeed under the 
other. By one, property was condemned if used to aid the 
rebellion. If, as happened in another case, the dividends or any 
part of them had been drawn from this stock and applied to 
rebel use, that law might sufiice. By the other, property was 
condemned if the owner Avas a rebel ofiicial or had personally 
aided the cause. In that event, the latter law was available. 
Although Mercer was in the rebel service, it was not easy to 
prove it ; while the other ground of confiscation, if existing, 
could i^robably be established by more accessible evidence, such 
as correspondence with ofiicers of the company here. 

But if the libel was incorrectly framed, no design lurked in 
the error. My personal agency in its preparation was limited 
to directing my assistant to proceed with the suit. He did so, 
and the libel was drawn by him without consultation with me 
as to its averments. I signed it, however, and made it my own. 
If I had myself drafted it, I should not have thought of confin- 
ing the prosecution to one law and ignoring the other, for the 
astxite purpose of helping the government by disappointing its 
informer to whom the case owed its origin. 

The moment a statute of the United States makes provision 
for an informer, the district attorney becomes, by law, his ad- 
vocate, as well as that of the government. It is then just as 
improper and unprofessional for that ofiicial to be ingenious to 
defeat the claim of the one as the other. Such a provision is to 
be construed and applied liberally, and is not oj^posed but fa- 
vored by the interests of the government. For his protection, 
the informer may rely upon the district attorney alone, and in 

* See letter of Mr. Justice Nelson, appendix, page 51. 
•j- Benedict's Admiralty Practice, %% 403, 406. 



24 ME. E, DELiflFIELD SMITH 

that case, if lie see fit, may fee him as he might any lawyer ; or he 
may employ additional counsel of his own ; although the former 
course better comports with the orderly conduct of the proceed- 
ings. These principles, recognized and acted upon in the courts 
of the United States from the organization of the government, 
constitute a sufficient answer to those who imagine that the 
informer received in this case any jirofessional services which he 
was not legally entitled to enlist and stimulate. And they like- 
wise show that a promise of reward from him could influence 
the district attorney in one direction only, and that the line of 
his official duty. 

The " monition," containing the substance of the libel, was 
regularly published by the marshal, and was also served on the 
company. Upon the return day, Mr. Allen attended court, but 
no one appeared for either Mercer or the company. The libel 
was taken " as confessed." All its allegations, as well those 
under one statute as the other, were by law and practice ad- 
judged true. Default was entered. The court directed judg- 
ment. And it was so recorded in the minutes.* 

Thus to the judgment, through legal and correct proceedings, 
the government became entitled ; but no more absolutely than 
the informer to a share in the i^roceeds. If, after he had brought 
this information and set on foot this suit, I could have deprived 
him of reward by any management at the commencement or 
during the progress of the proceedings, to do so would have 
been a wrong upon him, upon public policy, and upon law itself. 
But I had no such power. K the libel had not been drawn un- 
der both laws, he could have procured an amendment in that 
resj^ect. As the judgment stood, he had no need to do any 
thing ; for every step the case progi'essed inured to his benefit 
as well as to that of the goveniment. 

The right of the informer to share and the inability of the 
district attorney to prevent it are illustrated in the case of the 
United States against Indiana State Stock, &c., decided in the 
Eighth Circuit. I present an exemplified copy of the record. 
The suit was transferred to tlie Circuit Court, and was there 
adjudicated by Mr. Justice Davis, an eminent judge of the 
United States Supreme Court. As here, the libel was drawn 

* Benedict's Admiralty Practice, §§ 435, 452, 454. 



TO HOK. CALYIlSr T. IIULBURD, 25 

under both laws, and judgment was entered by default of the 
OAV^ner to appear. While, however, it was not denied that the 
owner of the stock had aided the rebellion, it appeared, in 
answers filed by the state officers, that neither the bonds them- 
selves nor any income therefrom had been so used. The case 
was therefore less strong for the informer than this ; for here, 
as already seen, the entire libel stood upon the record uncontra- 
dicted. This Mercer case having attracted public attention, 
the right of an informer to a moiety of the property condemned 
was expressly raised. The court, upon examining the statutes, 
determined that the informer was entitled to half the net pro- 
ceeds, and it was so adjudged in the decree.* 

I pi'oduce other recoi'ds from United States courts in vari- 
ous sections of the country. My mode of proceeding and the 
informer's right to share are alike confirmed. In some cases, 
not only are proceedings \inder the two confiscation laws blended 
in one suit, but they are united with complaints under non- 
intercourse and reveniie laws. In one instance, where a district 
attorney in Philadelphia had instituted two distinct proceedings 
against the same property, the record shows^ " they were in 
effect consolidated ;" the court allowed but one bill of costs in 
both ; a single decree was entered ; and the claim of an in- 
former, grounded in one suit only, was enforced in the common 
judgment. In another district, a case proceeded upon informa- 
tion of the marshal, and a moiety of the proceeds was received 
by him.f 

When Mr. Daniel S. Dickinson succeeded me in ofiice, the 
method of prosecuting confiscation suits and the right of the 
informer were examined by him, upon request of Mr. Allen, 
whom he retained as an assistant. The result was, Mr. Dickin- 
son himself pursued the precise practice I had adopted. In every 
new as well as in every pending case, he procured a decree 
dividing the proceeds between the United States and the in- 
former in equal parts. 

And it is, after all, the decree itself, which gives the informer 



* See appendix, pages 47 and 48. 

f On the rig-lit of a person to share in the proceeds of a confiscation pro- 
cured upon his information, see note, entitled Law, Practice and Precedent, 
appendix, page 49. 



26 MR. E. DELAFIELD SMITH 

his portion. Although drafted by the district attorney, it is 
submitted to the court ; and although brief, it is retained and 
examined. It receives the judge's emendations and is filed with 
his signature. They who imagine I could have awarded or 
withheld the informer's share according to my caprice, know 
little of the scrutiny exercised by the careful judge who signed 
this decree. I had diligently prosecuted the case ; but the judg- 
ment was his, not mine. 

This brings me to the alleged exaction upon Mr. Mudgett. 
The allegation is not sujDported by a single jjroof, unless foimd 
in his own testimony ; and when that is read, it appears no such 
accusation is either made or sustained ; on the contrary, it is 
expressly disproved by repeated declarations. When, in addition, 
we consider either the circumstances of the case or the profes- 
sion and maturity of Mr. Mudgett himself, the idea of imposition 
will not appear probable nor even possible. 

He admits (and in this they both concur) it was with Mr. 
Allen, when I was " not present," he had the first interview at 
which the subject of compensation from the information money 
Avas broached. , The circumstances of that interview are differ- 
ently remembered by the two. Without imputing intended 
misrepresentation, I will point out the differences between 
them. According to Mr. Mudgett, he met Mr. Allen, and the 
latter requested him to call. According to Mr. Allen, the call 
was upon his own motion, after observing in a newsj^aper a 
report of the ease. Mr. Mudgett says Mr. Allen suggested he 
should be liberal, and he replied he was willing to be. Mr. Allen 
states the suggestion originated with Mr. Mudgett. The latter 
says, for the purpose of securing activity in the case, he was 
willing to give |5,000 ; he was told the proposition would not 
be entertained ; it was not enoiagh ; one half was right. Mr. 
Allen, on the contrary, alleges, Mr. Mudgett, appearing elated at 
the default and judgment, declared, without solicitation or sug- 
gestion, if the case went throiigh, he would divide with him the 
proceeds of his share. Mr. Allen's version is substantially the 
same which he gave me at the time. He submitted the question 
whether there could be any objection to accepting the offer, and 
at the same time or subsequently said we would regard it as a 
joint fee which we should deserve if successful in this first and 
leadinsr case. 



TO HON. CALVIN T. IltJLBUED, 27 

The difficulties in the way of the prosecution were by no means 
ended by the judgment. If I was right that this stock could 
not be legally seized, the court might have proceeded without 
jurisdiction, the judgment prove a nullity, and the company 
successfully resist a transfer of the stock, as was subsequently 
done by the Great Western Railroad Company in the " Wiley 
case." To Mr. Mudgett I had before explained this difficulty, 
and I sent for him now to consult in relation to it. It was neces- 
sary the stock should be in court by transfer to its clerk or to 
the marshal. We could proceed no farther without it. Objec- 
tion to the transfer had already been made by the president of 
the comijany. The by laws required a surrender of the certifi- 
cates, which we of course could not jDroduce. The directors 
feared Mercer or his assigns, might hereafter hold the comj^any 
responsible and claim indemnity for parting with his stock. Mr. 
Mudgett came in accordance with my summons, and thought he 
could aid me through an acquaintance in the company itself 
He was anxious to have the obstacle surmounted ; evinced much 
satisfaction with the successful obtaining of the judgment ; urged 
that Mr. Allen and myself should press the case forward ; and 
said if it was carried through, he should be satisfied with $15,000, 
and should give to Mr. Allen, as his attorney, the balance of his 
share. The proposition was his own, and it was in substance 
the same made to Mr. Allen in my absence. As the stock was 
then selling, the shares in suit were expected to realize 160,000, 
of Avhich the informer's moiety would be $30,000. 

It being questionable whether the court had acquired jurisdic- 
tion, my steps to obtain the transfer were of delicate determina- 
tion. Having made unsuccessful ajJi^lication to the comjjany, I 
now desired to see and consult Mr. Mudgett " before any thing 
farther was done," He was mistaken in ascribing that wish to 
a matter upon which, as Mr. Allen had informed me, he had 
already fully delivered himself. 

The ofiei*, made to my assistant, and repeated to me, was not 
compelled, induced or prompted by any requirement, claim or 
suggestion of mine. No stipulation, no agreement of any kind, 
was exacted or sought. And I simply accepted, for myself and 
assistant, the voluntary engagement of Mr. Mudgett to allow a 
fee from a recovery already by law assured to him in case the 
stock in suit should ever be actually reached and sold. Acting 



28 MR. E. DEttAFIELD SMITH 

in good faith and with honorable motives, I regarded him as 
allied to the government in a common object, where the interest ■ 
of the one promoted the policy of the other, and an employment 
by either must act as a retainer from both, 

A letter, received by Mr, Allen after this suit was ended, 
contains a precisely similar engagement in another case, in which, 
however, no property was found and nothing was realized.* 

The prejudicial influence of Mr, Xelson's original statement 
having been annulled by his own explanations, I hope the 
testimony of Mr. Mudgett may be i-e-examined. You will 
perceive, that whether " willing to Avound " or not, he makes 
no charge of any act, omission, or threat, which could operate 
upon him as an extortion or exaction. His very strongest 
declaration is, " This matter was presented to me as a sort 
of claim, as I understood.'''' For that understanding, I was 
not resjionsible. He says, in substance, he was willing to stimu- 
late activity in the prosecution ; but there is no intimation of 
any want of it. On the contrary, the c^se had been commenced, 
pressed forward, and carried to judgment, without any such 
inducement, and he expressly admits there was " no delay or 
hitch in the prosecution." Clearly, from what he had already 
observed, he had no reason to aj^preliend any. But he says, 
" the idea struck " liim, it was in the power of the district attor- 
ney to have no part given to the informer, and this power might 
be exercised. To that apprehension, however, he gave no ex- 
pression, and he does me the justice to make the following 
declarations: 1, "There was no intimation that they Avould do 
any thing of the kind ;" 2. " No intimation was made to me 
about what they would do ;" 3. " It was not intimated to me 
that the power would be exercised ;" 4, " I know several decrees 
were entered by Judge Betts in the same way, in cases where I 
had no reason to suppose that any such claim was made by the 
district attorney ;" 5. " I have no reason to say that Mr. Smith 
would have taken any other course than he did take in the 
matter." I have already shown, 1. I had no such power ; 2, If 
I had, its exercise would have been a wrong not only upon him, 
but also upon the government ; and 3. If the power existed, I 



See letter, dated Dec. 28, 1863, appendix, pages 59 aud 60. 



TO HOIST. CALVIN T. IIULBURD. 29 

was not conscious of it. It Avas, therefore, no weapon in my 
hands. An attorney may practice extortion upon a client, by 
means of superior knowledge. If Mr. Mudgett was right as to 
the i^OAver he speaks of, the superior knowledge was his, not 
mine. But he was a mature lawyer, a politician, and a deputy 
collector at the head of the entry department of the custom 
house. That he was in any sense a victim, is nothing less than 
absurd. Nor does he affirm it. 

The promise was voluntary. So was its perfoi'mance. Having 
fairly cited from his testimony every word which imj^lies it was 
not, I now summon his own declarations that it was. 1. His 
letter of August 3, 1863. This letter was written after the close 
of the case, and is ante dated. Its history is this : In the course of 
the prosecution, Mr. William Fullerton,* the counsel of the com- 
pany, entered an aj^pearance, and with a view of better protecting 
his client from future liability for transferring this stock, proposed 
certain amendments to the decree, which I consented to, and 
the court adoj^ted. This was the end of the company's opposi- 
tion. They now came forward and aided the proceeding. (If 
they had not, it must have failed, as it subsequently did in the 
"Wiley case," where the Great Western Railroad Company 
would not transfer the stock in suit there, and experience de- 
monstrated they could not be compelled to.) Being merely 
stakeholders, the directors thought Mr. Fullerton's fee should 
come from the fund and not from their treasury. But I would 
not consent to reduce the government's share. Thereupon Mr. 
Mudgett himself agreed to pay the fee in question, to the extent 
of ten per cent, upon his information money, and apj^eared glad 
of the opportunity to conciliate the company. Some time 
subsequently Mr. Fullerton called and said that Mr. Mudgett, 
after voluntarily paying him the fee, now demanded its re- 
turn, and as he had understood a fee was also received by 
my assistant, we ought, in his judgment, to have in black and 
white that it was voluntarily given, for a charge of extortion 
against an official was easily made and readily believed, and 
Mr. Mudgett might sooner or later take the same course with 
us as with him. No suspicion of such a j)Ossibility had occurred 



* Now judge of the Supreme Court and Court of Appeals of the state of 
New York. 



80 ME. E. DEBAPIELD SSIITH 

to me. Of Mr. Mudgett, who had come to this city from Maine, 
I had never heard, to my knowledge, before he gave this informa- 
tion. All I kneAV of him was, he had been well spoken of by 
Mr. Allen. Mr. Fullerton's advice, however, induced me to send 
for him. He called, and I said in substance, " Mr. Mudgett, you 
know officials are ajjt to be attacked sooner or later, and it seems 
to me we ought to have something to show you made this com- 
pensation of your own accord." With a manner which repelled 
suspicion, he replied, " Certainly I did ; what do you want me to 
do ?" I rejoined, " Well, I don't know, suppose you write a 
letter to Mr. Allen." To this he cordially assented ; but said 
he was in haste then, and would send it from the custom 
house. The letter came. It is explicit. A lawyer of years may 
rightly be held to his own admissions. If this letter be true, 
there was no exaction. That it was written after the case was 
closed, and his interest therein no longer within our possible 
control, renders it stronger than if sent at its date. The form 
of the letter and the date were Mr. Mudgett's own conception, 
unaided by any suggestion from me.* 2. During the spring 
following, (1864,) some of the officials then in the custom house 
manifested unfriendly feeling toward the district attorney's 
office. (I had before encountered like opposition from that 
direction, as had ray predecessors. And it was active when the 
question of my re-appointment approached. The attack with 
regard to this case originated there, but not with Mr. Mudgett 
himself) We heard it had been said at the custom house that 
he was obliged to pay to have his suit prosecuted. Mr. Allen 
called and inquired as to this report. Mr. Mudgett declared the 
story did not come from him, for as he (Mi*. Allen) knew, the gift 
was perfectly voluntary.f 3. I was, of course, much aroused ; I 
sent for him ; demanded an explanation ; and without waiting 
for it, said I would repay all he had parted with, if he 
was in any way dissatisfied. To this proposition he declined to 
listen, assuring me he had not started any such report ; and he 
added, " It was perfectly voluntary, perfectly so."J 4. Tlie rumor 

* For this letter, see appendix, page 57. See, also, letter of Judge William 
FuUerton, appendix, page 56. 

f See Mr. Ethan Allen's testimony, appendix, at page 66. 

j See affidavit of Mr. George P. Andrews, appendix, pages 51 and 53. 



TO HOK. CALVIN T. HULBUJRP. 31 

was taken by some person in the custom house to Mr. Joshua 
F. Bailey, then making investigations as a special agent of the 
treasury department. He summoned Mr. Mudgett ; examined 
him ; and dismissed the matter, finding nothing to justify its 
pursuit.* 5. Mr. Theodore F. Andrews, the stenograjDher -yvho 
took the testimony before the committee, heard a conversation in 
which Mr. JMudgett admitted the payment was not induced by 
any act or word of mine, and was entirely voliintary.f 

That it must have been so, the manner in which it was made 
will demonstrate. When the stock in suit was sold, it was done 
by the marshal, through a broker selected by Mr. Mudgett him- 
self It w^as difficult to dispose of it all. After a portion had 
been sold, Mr. Mudgett bought the remainder, and had it 
transferred to a third person, because, for reasons which appear 
in his correspondence with Mr. Allen, he did not wish the com- 
pany to know that he was a purchaser. For the purchase money, 
he gave his check to the clerk of the court, and requested its re- 
tention until the final distribution, when it was returned to him 
as so much money. Three hundred and thirteen shares became 
his in this way. That Mr. Allen intended to share with me what- 
ever he might receive, like every other fact in the case, was oj^enly 
spoken of, and Mi*. Mudgett knew it. In view of it, he himself 
directed the shares purchased by him to be put in four certifi- 
cates, two for himself and one for each of us. The person in 
whose name they had been temporarily placed by the clerk of 
the court at Mr. Mudgett's request, executed the usual blank 
powers of attorney to facilitate their transfer, but never took 
the custody of the certificates themselves. Mr. Mudgett brought 
them from the clerk's office to mine ; came into my room accom- 
panied by Mr. Allen ; and in a friendly way laid two of the cer- 
tificates upon a table near my desk. This took j)lace several 
days before the formal distribution and close of the case. To 
the clerk of the court and to others, he expressed satisfixction.J 



* See letter of Mr. Josliua F. Bailey, appendix, page 53. 

f See affidavit of Mr. Theodore F. Andrews, appendix, page 53. 

:[: See Mr. Allen's testimony at pages 63 and 64, in the appendix. See, also, 
papers and letters of Mr. Mudgett, appendix, pages 57 to 60. And see letters 
of Mr. Betts and Mr. Bullus, clerk and assistant clerk of the United States 
District Court, appendix, page 54. 



32 im. E. DEBAFIELD SMITH 

The purchase of a part of the stock, with the ensiling complica- 
tion, had been his own act, without my previous knowledge. He 
selected his own mode of carrying out a proposition by himself 
voluntarily made. If he had chosen to retain his entire share, as 
he subsequently did in another case, he certainly might have done 
so. The judgment was with the court for execution, not with 
me. The informer's share was held by the clerk, not by us. 
The receipt, without which it would not be parted with, was 
his to give or to withhold. 

For more than two months the two certificates lay in our hands 
without a sale or transfer. And when we discovered that another 
person had also aided the proceeding, and we proposed to sub- 
divide our stock with that person, Mr, Mudgett said, " You may 
do as you please loitli yours, I shall give nothing from mine." 

It has been asked. What could have been the motives of 
Mr. Mudgett's offer ? One he himself explains. The idea had 
struck him that the district attorney had the power to with- 
hold the informer's share and give the entire proceeds to the 
government. He repeatedly admits no such intimation was 
ever made. He adds, as before quoted, " I have no reason to 
say that Mr. Smith would have taken any other course than he 
did take in the matter," Yet he throws out the idea, that the 
power, of which he imagined the existence, might j^ossibly be 
exercised, unless he should make us interested in the realization 
of his share as informer. Here, certainly, as he understood 
the case, was a most ample motive ; one, however, utterly un- 
revealed to me. As I have already demonstrated, 1. I had no 
power to deprive him of his share ; 2. If I had, it would have 
been such a palpable wrong upon law, public policy, and him, 
I would not be likely to attempt it ; 3. Whether I had or not, 
neither its existence nor its exei-cise ever once occurred to me 
as possible. Under these circumstances, I am not resijonsible 
for the secret working of his mind. The lacts disclose other 
motives of equal j)Ower. Mr. Allen ascribed his conduct to a 
srenerous recoscnition of services which had carried the case on 
to judgment, coupled with a desii*e to conciliate influence and 
support for a lucrative official appointment then desired. To 
me, it appeared the ordinary case of a man interested in a 
doubtful suit, anxious to proffer a premium upon the exercise 
of skill and diligence in surmounting obstacles and carrying 



TO HOjST. CALVIN T, HtlLBURD. 83 

the case through to a practical result. It would cost him 
nothing, and his jiromised liberality did not strike me as at 
all remarkable. The difficulties I have before described in the 
way of procuring a transfer, were foi'midable ; he could not aid 
in removing them as he had hoped ; they rendered the final 
issue a matter of uncertainty and doubt. This is the same 
motive that subsequently induced his agreement to pay the fee 
of Ml". William Fullerton, the counsel of the company from 
which the transfer was required. In his testimony, he speaks 
of the fee which he acknowledges was proposed by him to Mr. 
Allen, as likely "to make them active in the matter." He 
adds : " I regarded the whole thing as in the hands of the 
district attorney, and of course neither the government nor I 
could make any thing out of it unless he was disposed to 
prosecute it." It is true the case had been successfully ad- 
vanced so far. without any inducement but a sense of public 
duty. It is true, also, as Mr. Mudgett admits, there had been 
no intimation that exertions would be in any event relaxed. If 
my duty to the government and its informer was sacred, so is 
that of every attorney to his client ; nor are there many law- 
yers, however scrupulous or even fastidious, who have not at 
times become interested, beyond an ordinary fee, in the result 
of litigations entrusted to their care. Unaware, as I was, of all 
that may have been in Mr. Mudgett's mind, I could not regard 
the offer as an imputation. It was merely a recognition of the 
fact that a lawyer will ordinai'ily, except in cases of charity or 
distress, work more earnestly with than without the incitement 
of a fee. Eminent advocates Avere employed to assist me in the 
" Wiley case." That employment was authorized by the informer 
there ; and it was from his share their fees were to be paid. In 
this case, the informer sought to animate the exertions of the 
district attorney and his assistant ; in the other, to add to 
theirs, the efforts of additional counsel. The motive was 
manifestly similar in both cases. 

Mr. Mudgett's gift was a fee, contingent upon success in ob- 
taining a transfer of this stock under circumstances of difficulty 
and doubt. According to his offer, it was to amount to half of 
his moiety ; and this half, as I have said, Mr. Allen and myself 
agreed to share equally. The moiety was reduced, however, in 
the first instance, to the extent of nearly $3,000, to pay the fee 

3 



34 ME. E. DELAFIELD SMITH 

of Mr. William FuUerton, the company's counsel, who received 
it from Mr. Mndgett, with the approbation of the company, as 
the former explains. 

Again the amount realized by lis was materially reduced 
as follows : Mr. Alexander Fullerton, the clerk in the office 
of the company from whom Mr. Mudgett obtained his inform- 
ation, subsequently came forward and claimed that he had 
imparted it to the latter as his attorney at law, upon an 
agreement to share the fruits. Mr. Mudgett denied this, and 
suit was brought ; but Mr. Alexander Fullerton said Mr. 
Mudgett was not responsible, and it was too late to reach 
him. There was plainly no legal claim against Mr. Allen and 
myself; but we ultimately believed Mr. Alexander Fullerton 
had in truth contributed to the result and should be rewarded. 
We therefore gave him one third of our stock, with which he 
was satisfied. We did it as an act of justice, in which Mr. 
Mudgett, taking a different view, declined to unite.* 

After these reductions, the amount realized by Mr. Allen and 
myself, was about $4,000 each. Considering the labor and vex- 
ation incurred in prosecuting the case ; the obstacles overcome ; 
and the result attained, the amount is certainly not large. 
Freely contributed from the information money, it left the gov- 
ernment's portion iinimpaired. And this was the extent of my 
compensation. Your rej^ort, misled by one of the mistaken 
statements in Mr. Mudgett's testimony, speaks of " taxed costs 
and 2|- per cent, commission which went to the United States 
district attorney." This is not correct. Those costs and fees 
went to the United States, not to me.f They amounted to 
$1,237 87 ; and added to the government's legitimate share, 
the treasviry realized $30,827, sufficient to pay the ordinary 
salary of the district attorney for more than five years. Nor 
should it be forgotten that as before intimated, a knowledge of 
this case attracted other informations, from which the govern- 
ment received thousands of dollars more. Of all the informers, 
not one ever did, or with truth could, allege either the exaction 
or intimation of a fee. But one beside Mr. Mudgett ever offered 



* See letters of Mr. Alexander Fullerton and of liis counsel, Mr. Chambers, 
appendix, page 55. 
f See certificate of the Comptroller of the Treasury, appendix, page 51 . 



TO HON. CALVIN T. HULBURD. 35 

or paid any ; and considering the number of cases prosecuted, 
those who cherish the most stringent ideas of official or profes- 
sional compensation, would acknowledge that the new and 
extraordinary labors imposed by these laws were rendered with 
moderate remuneration. 

If I doubted the propriety of accepting this fee, I might 
well defer to the Honorable Edwaud Bates, of Missouri, then 
attorney general of the United States, who had expressly ad- 
vised, that in cases of seizure under the revenue laws, where half 
the proceeds went to the officers of the customs, the right of a 
district attorney to receive compensation from them, if they 
chose to give it, was imquestionable. While in New York they 
never oifered and I never asked it ; in Philadelphia, the practice 
had been sanctioned by the usage of years, and has never been 
rebuked. Scrutinized by the jurist and statesman above named, 
my acceptance of the fee in this case has been approved, and he 
was my official superior at the time. By other lawyers, promi- 
nent and trusted, the same approval has been expressed.* 

That it was my conviction no one could deem the acceptance 
improper, is shown by the open manner in which eveiy thing 
was done. During the pendency of the suit, I mentioned all 
its incidents, freely, to persons in and out of the profession. 
The facts, fairly stated, I knew could not injure me. Any other 
representation of them, by one who evinced the satisfaction 
expressed by Mr. Mudgett, was not to be apprehended. My 
consent to the offijr was not altogether selfish, for an assistant 
had referred the matter to me as one which opened an oj)portu- 
nity for innocent pecuniary advantage. 

I have proved the thing offered Mr. Mudgett's own — by the 
law allowed and by the court awarded. I have proved, also, that 
he voluntarily gave it. Its acceptance was not prohibited by either 
the letter or the policy of, the law of the land. On the contrary, 
while a statute gives the district attorney a salary for his ordinary 
labors, other laws provide additional and contingent fees as a 
premium upon diligence in special cases. For instance, in revenue 
suits where the government is plaintiff, he receives a commission 
of two per cent, when he collects money involved, and no com- 



* See the letter of Mr. Bates, ante, page 12. 



'■^6 ME. E. DELATIELD SMITH 

IJensation when unsuccessful.* In revenue cases where the gov- 
ernment is defendant, fees are certified to him by the court, and 
they are regulated in practice by his success as well as by his 
trouble. f In other cases, like provisions are made. And even 
in criminal j^rosecutions, the fee bill gives the district attorney 
fifty dollars if he convict, and twenty upon acquittal.;}; Under 
a special act which I drew, this last provision does not apply in 
this district ; but it is a striking illustration of the general 
policy of the laAV, to which I have alluded. The framers of the 
confiscation laws made express j^rovision therein for allowances to 
district attorneys ; but by a palpable oversight, they omitted to 
guard against a general provision in an old law, which operated 
in this district, to appropriate those allowances to the United 
States treasury. The result of that unintended omission was, 
that the district attorney hei*e was left without compensation 
under these two laws, while it was given to him under every 
other special statute passed during the augmented law business 
growing out of the late civil war. Among the special statutes 
referred to, Avas the " non-intercourse act," under which (it be- 
ing a revenue law) the district attorney receives commissions 
contingent upon success, although it condemns " rebel property" 
upon principles similar to those upon wdiich these confiscations 
rest. The law intended, bxit failed, to give me compensation 
here from the entire fund. I received it by voluntary gift from 
the informer's share. It was regarded by me as the well earned 
reward of an advocate. As such it was accepted. 

It did not come to the attorney of the government from an 
opponent in the suit ; but from its coadjutor, the prosecutor him- 
self As I have shown, the only influence it could exert, was to 
promote diligence in prosecuting a suit wherein the government 
and its informer were alike interested. It was the case of a 
lawyer employed by one joint creditor to prosecute a claim. In 
the progress of the suit, the other joint creditor, being equally 
interested, promises compensation. Certainly the first would 
not complain. Nor could the second, unless the victim of extor- 



* 12 U. 8. Stat., 741, § 11. 
t 13 U. 8. 8tat., 741, § 13. 
X 10 TJ. 8. Stat., 163, § 1, paragraph 9. 



TO HON. CALVIN T. HULEUED. 37 

tion. Of the existence of tliat, in this case, I think I have de- 
monstrated the iraposgibility. 

In the Indiana case, the court certified to the district attor- 
ney and his associate, equally to each, five thousand dollars from 
the entire proceeds, and then decreed a moiety of the remainder 
to the informer. Here, the government's share remained intact. 

When the company required the allowance of the fee of their 
counsel, and it was proposed to tax the entire fund, I would not 
permit it. From the informer's share alone, although myself 
interested in that, I advised its payment. If I did injustice at 
all in the course of the case, it was in this, and on the govern- 
ment's behalf 

It has been intimated, that as a lawyer, holding a high oflice, 
I should not have received a fee from an informer, for the reason 
that he was such, and ought not, in fact, to have encouraged him 
at all. To this last suggestion, I might oppose the remark of a 
distinguished and upright lawyer, himself a consistent sympa- 
thizer with the South, who said, when I mentioned this 
criticism, " There is nothing in it ; it was palpably your ofli- 
cial duty to encourage informers under those laws." The 
contest for national existence is now determined ; but the 
j)olicy of confiscation had then, in the darkest days of a 
doubtful struggle, been adopted by my ofiicial superiors as 
auxiliary to the work of arms. During the long civil war, as 
public acts attest, I participated in the feeling which prevailed 
at the North. The hands of General Mercer, then an officer in the 
confederate army, seemed to me red with blood, in a conspiracy 
to destroy the government, without cause, in the interest of 
oppression and ambition. The law gave him notice to desist on 
pain of confiscation ; and when he refused, proffered a reward 
for the discovery of property belonging to him protected here. 
Knowing nothing of Mr. Mudgett, beyond the fact that he 
brought this information while the country was gasping for life, 
the act did not suggest to me the character of an ordinary spy 
and informer. 

If it was right to accept this emolument, it would have been 
wrong to refuse it. Improvidence is not a virtue ; and men are 
not disinterested abroad, who are unjust at home. An act is 
honorable, if it be blameless ; and a high toned mind will be 
slow in thinking as in imputing evil. 



38 ME, E. DELAFIELD SMITH 

My connection with this case was exposed to criticism with- 
out a hearing from me, and under circumstances calculated, 
although not by you designed, to mislead. The resolution of the 
Plouse of Repi'esentatives, under which your committee was 
sitting, directed inquiries into the custom house, not the courts.* 
If charges had been made against my office, they would have 
been referred to the committee on the judiciary. Yet your 
report, bearing at the top of every page the title " New York 
Custom House," was made, through two isolated paragraphs, 
tlie vehicle of irrelevant attack upon me in this case, and upon 
one of the courts in another matter. Having a personal griev- 
ance in relation both to that court and to me, the secret 
accusers, who gained and wronged your confidence, diverted at- 
tention from themselves and fixed it upon other objects. Mov- 
ing in the dark and through indirection, they gradually changed 
their positions, and became trusted agents of your good purpose 
to expose abuses in the public service. Assuming to know and 
to state all the facts in relation to this case, they procured, in 
support of their allegations, the two ex parte statements attached 
to your report. With a show of fairness, they suggested the 
examination of Mr. Allen ; but this did not help the matter be- 
cause Ml-. Mudgett's testimony was not shown, and Mr. Nelson's 
had not been taken. Hearing of the former, I applied to see it, 
but could not ; it was not written out nor accessible ; I inquired 
in relation to it, but learned it was not regarded as calling for 
notice. I offered to be myself examined, but was assured it was 
not necessary.f Mr. Mudgett's statement was given in October, 
1864, and you inform me it would not have been printed, but for 
the implied weight its injurious inferences acquired by the testi- 
mony of Mr. Nelson, now thoroughly explained. Mr. Nelson's 
statement was not taken until March 1st, 1865, at Washington ; 
when, upon the same day, on the eve of the adjournment of 
Congress, and without notice to me, the report was made. It 

* This resolution was adopted January 11, 1864, and is as follows : 
" Resolved, That the charges recently made of oflBcial misconduct in the 
New York custom house, in regard to the alleged shipment of contraband 
goods and supplies, and all matters of alleged misconduct in the management 
of the aflairs of the custom house at New York, be referred to the commit- 
tee on public expenditures." 
f See the affidavit of the Stenographer of the Committee, appendix, page 53. 



TO HON. CALVIN T. HULBURD, 39 

contains a brief summary of supposed facts. These are founded, 
of course, upon the ex parte statements before mentioned. I 
could not answer them at the time, because neither the report 
nor the testimony was brought to my knowledge, until subse- 
quently published in a newspaper. I could do nothing to pre- 
vent their influence at Washington, because they were acted 
upon by the attorney general without notice to me. That officer 
at this time was not Mr. Bates, who knew me, but his successor, 
Mr. Speed, who did not. Supposing I had nothing to say, he 
gave me no opportunity for explanation, assuming that this had 
already been afforded by the committee itself Although my 
office was of a grade little below his own and held by the same 
tenure, he did not communicate with me nor investigate the 
facts for himself, but took summary action upon a report to 
Congress, which Congress itself never acted upon. 

All I heard was rumor ; and I had been so often commended 
by my superiors, I supposed myself immovably anchored in 
their good opinion, at least until informed, as I never was, 
that detraction had succeeded in inducing them to listen. 
But the President was absorbed with the surrender of Rich- 
mond, and .his first secretary disabled by a fall from a car- 
riage. I had been in office over four years, and under other 
circumstances could not have complained if an eminent gentle- 
man, much my senior, was appointed to succeed me. It is a 
satisfaction to know, Mr. Lincoln did not himself read nor pass 
judgment upon these statements ;* he relied upon his law officer, 
who was himself misled by them, standing, as they did, and for 
the reasons above given, unanswered ; and when a distinguished 
friend of mine, a few days before the President's death, ex- 
plained the case to him, he authorized my retention in office 
and the recall of the new commission. But the latter was found 
to have been mailed, and it was too late. 

Office, however, is not important. A good name is. And I 
thank you for this opportunity of clearing my official record 
from the only reflection ever thrown upon it. Pressed with 
affairs of greater moment, yourself and Mr. Speed acted incon- 
siderately with regard to this ; but neither is stained with in- 
tentional injustice. 

With perfect fidelity to truth, I have endeavored, in the fore- 

* See Mr. Speed's letter, ante, page 11. 



40 ME, E. DELAFIELD SMITH 

going statement, without resentment and without injustice to 
others, to bring to judgment all the facts of this case. From 
jou who wrote, from your three associates who united in sign- 
ing, and from the attorney general who acted upon the report 
wherein I was misjudged, I solicit the most searching scrutiny 
into my acts and motives. From one of the two witnesses whose 
ex parte statements were printed, I have received the most com- 
plete justification. From the other, I desire nothing beyond the 
declarations which I have cited from his testimony ; and I leave 
it, calling attention, only, to the depositions, records, and other 
proofs now produced. 

The originators of the wrongful attack whereby my re-ap- 
pointment was designedly prevented, have not been named. 
Their opposition had reasons honorable to me. Their hostility 
exhausted itself, and I am glad to believe exists no longer. 
Their movement was so secret and unfair, that Avhen discovered 
it filled my mind with indignation and anger. By time and 
determination, those feelings have been allayed ; at least, I have 
been able to suppi'ess their manifestation in this paper. Yet 
I will not quietly consent to be injured permanently in the good 
opinion of any just mind. To you and to truth, I look to 
correct misapprehensions which your report made public. 

Having never been assailed, except in this instance, I con- 
fess to the pain of the new experience. But I may be par- 
doned for gratefully referring to the confidence expressed by 
my brethren of the bar ; the kindness evinced by leading polit- 
ical opponents with others ; and the undeviating support of 
my own party in New York, whose convention, a few months 
after the close of my official term, tendered me the unsought 
distinction of a nomination upon their judicial ticket as judge 
of the Superior Court. 

From your report, however, I made no public appeal, because 
those who knew me did not require, and those who did not 
would not be convinced by it. Through a congressional com- 
mittee, the injustice was done ; and from a like committee I had 
asked a hearing, when circumstances to which you most honor- 
ably yielded induced you to enter upon this investigation. The 
time has now come when, upon the most ample evidence, the 
authors of the report itself will do me justice, 

I am, sir, very respectfully yours, 

E. Delafield Smith. 



to uon. calvtn t. iiulburd. 41 

State of New York, ) 

City and County of New Yorh^ \ ' 

On the fifth day of June, A. D., one thousand eight hundred 
and sixty seven, before me appeared E. Delafield Smith, with 
whom I am personally acquainted, who being by me duly sworn, 
dejDOses and says, that he drafted the foregoing statement ; that 
the same is copied as he wrote it ; that he has read it over as 
copied, and knows its contents ; and that the same is true to the 
best of his knowledge, information and belief. 

In witness whereof, I have hereunto set my hand and 
[l. s.] afiixed my seal of office, the day and year last 

above written. 

Chas. M. Hall, 

Notary Public in and for the city 

and county of New York. 



A. P P» E ]sr D I X 



Mr. HULBURD TO Mr. NELSON. 

St. Law. Co., N. Tokk, 
Brasher Falls, May 10, 1867. 
George P. Nelson^ Esq., 

Sir : — In 1865 you were examined before a congressional committee, of 
which I was chairman, in relation to a case prosecuted in 1863, by E. Dela- 
field Smith, Esq., then United States district attorney at New York, for the 
confiscation of stock in the Minnesota Mining Company, owned by HughW. 
Mercer, a general in the rebel service. 

It has been represented to me that your testimony, as it stands in the 
printed report, did Mr. Smith injustice, and that injurious inferences have 
been drawn from it, which it is believed would be removed upon your fuller 
statement. 

You will, therefore, oblige me in making such explanations of your tes- 
timony, if any, as may be warranted by the facts, and give me all the 
information possessed by you bearing upon Mr. Smith's connection with the 
case. 

If you will also be so kind as to verify your supplementary statement be- 
fore an officer authorized to administer oaths, I will esteem it a favor. 
I am respectfully yours, 

C. T. HuLBURD. 

FROM Mr. GEORGE P. NELSON. 

New York, 3fay 17, 1867. 
Hon. Calvin T. Hulburd, 

Sir : — Your letter of the 10th instant has been received. I take pleasure 
in complying with your request, particularly as my former testimony, as 
printed, was the cause of much misapprehension, and led to unjust reflections 
upon Mr. E. Delafield Smith. 



44 APPEKDIX. 

It was far from my intention to appear as Ms accuser. Having mentioned 
that I had told Mr. Smith of this stoclc prior to the filing of Mr. Mudgett's 
information, I was some time afterwards subpoenaed to attend the committee 
at Washington. 

My testimony was taken March 1st, 1865. It was brief, confined substan- 
tially to answering a few questions put -to me. No one appeared on behalf 
of Mr. Smith, and hence there was, of course, no cross examination. If pre- 
sent, Mr. Smith could have brought forward facts, some of which have since 
come to my knowledge, showing his exemption from all blame. 

As the matter now stands, it would seem that Mr. Smith's refusal to pro- 
ceed, when I called upon him, was without good cause ; whereas, in fact, he 
had a substantial and public reason for the refusal, as will hereafter appear. 
It would seem also, that his subsequent prosecution of the case, taken in 
connection with the refusal in question, was not open to fair explanation ; 
whereas, irlien the facts are stated, it is plain that Mr. Smith acted as any 
honest official would have been likely to act under the same circumstances. 

Although there was a misunderstanding on my part, the injustice to Mr. 
Smith, as founded upon my former testimony, was not so much in what was 
said as in what was omitted. 

The report of the committee, referring to my testimony, says : " Mr. Smith 
assured him (me) there was no law by which pruate property could be for- 
feited." A reference to my deposition shows that such was not the language 
imputed by me to him. It is so expressed as to readily admit of such an 
interpretation ; but the difference will soon be as evident as it is important. 
The words in the printed testimony are : " He said to me it could not be done ; 
that there was no law by which property of individuals could be confiscated." 
Even as thus given it is evident from what follows that there is an important 
omission. 

The point of the difficulty felt by Mr. Smith in the way of a prosecution is 
not exhibited. That difficulty related, not to the individual owning the pro- 
perty, but to the situation of the property itself. This is plain from my sub- 
sequent testimony, as follows : " I told him I understood differently ; that 
an act was passed authorizing the confiscation of the property of rebels, 
persons guilty of such crimes as Mercer had been guilty of, and that it 
authorized the confiscation of it wherever it could he found. He said it could 
not be done." The words " wherever it (the property) could be found," indicate 
the difficulty in Mr. Smith's mind in the way of confiscating the stocks men- 
tioned by me. And they show also, that in giving Mr. Smith's language, 
the words " in such cases," or some similar expression, ought to be inserted 
in my statement of what Mr. Smith said to me. Thus it should read : 
" He said it could not be done ; that there was no law by which property of 
individuals in such cases could be confiscated." 

I am satisfied that I misunderstood him at the time. The interview was 
a short one. I did not get the point of Mr. Smith's difficulty. 

A little explanation will make the matter plain. At the risk of some pro- 
lixity, I take upon myself the making of this explanation, feeling that under 
the circumstances it is due from me to Mr. Smith. The rebel property men- 



FROM MR. GEORGE P. NELSON. 45 

tioned by me to liim was stocks of "foreign corporations," tliat is, of 
corporations created in other states. This I now understand Mr. Smith 
knew, and thus the difficulty occurred to him, but I did not know it. 

The companies had business offices here, and I supposed them incorporated 
in this state. The Minnesota Company was in fact incorporated in Michigan. 
It had an office and transfer books in New York, but its corporate existence 
and its property were elsewhere. As Mercer, liimself, then in the rebel 
army, had the certificates of stock, they could not, of course, be seized. The 
laws required an actual seizure of the property as the foundation of the pro- 
ceeding. Mr. Smith considered a seizure impossible ; there was nothing to 
seize. The confiscation laws did not provide for any proceeding in the nature 
of an attachment by notice on the company's officers, as in the case of the 
credits or effects of a non-resident debtor standing on the books or in the 
hands of third persons. Yet a proceeding akin to that was all the district 
attorney could do toward seizing this stock. It is true he afterwards carried 
a suit through and condemned it ; but there was no defence, no litigation ; 
judgment went l)y default. No one intervened for the owner, Mercer. The 
company appeared and thus probably conferred jurisdiction ; at all events, 
they consented to the decree and transferred the stock to the court. So the 
question was not raised. As stated in my former testimony, I had not ex- 
amined these laws ; and if I had, the point might not have occurred to me, 
because I supposed the companies in question were New York corporations. 
Otherwise, the difficulty of Mr. Smith and his refusal to proceed would have 
been fully understood by me, and all misapprehension have been avoided. 
It is but just to Mr. Smith to say, that the difficulty was not only a substan- 
tial one, but that, in a subsequent case, in which the objection was raised and 
argued, the United States Circuit Court here held that stock so situated could 
not he confiscated, ; and thus, in the first litigated case, Mr. Smith's views of 
the law were adjudged correct, and his objection to commencing suit was 
j ustified. That was the case of stock of Le Roy M. Wiley in the Great Western 
Railroad Company, incorporated in Illinois, but having its transfer office 
and its agents in New York. It was argued by Mr. Larocque for the claimant 
and company, and by Mr. Evarts for the United States. The opinion has 
been published, and I believe its correctness in this respect has not been 
questioned by the bar. 

I ought to mention that I have since learned an additional fact, which fur- 
ther explains Mr. Smith's unwillingness to proceed when I called upon him. 
In the fall of 18G1 he had commenced a large number of suits under the 
first law, which xoere discontinued by direction of the government, and confisca- 
tions pointedly discouraged by the district attorney's superiors. After the 
new law was passed in 1863, enlarging the grounds of confiscation, district 
attorneys were informed by the attorney general that he would issue formal 
instructions to them under both laws. It appears that those new instruc- 
tions, which encouraged confiscations as the former had discouraged them, 
were not received until after my application, and therefore that when I called 
Mr. Smith was guided in his indisposition to proceed by the supposed corres- 
ponding wishes of the executive department of the government ; whereas. 



46 APPENDIX. 

when Mr. Miidgett applied, the tenor of Mr. Smith's instructions was the 
reverse. 

I confess that I was surprised that after declining to prosecute, Mr. Smith 
some months subsequently should have undertaken this case at the instance of 
another person. But I filed no information, and left no memorandum, for I 
supposed the case could not be maintained, and as I did not intend, in any 
event, to accept any thing as informer, I had no personal interest to urge me 
to press the matter further ; whereas, Mr. Mudgett did actually put an infor- 
mation on file, and thus became entitled to have the prosecution proceed, if 
at all, upon his information. He urged and insisted \ipon a suit, whereas I 
dropped the matter. As I understand, it is conceded by all, his offer of com- 
pensation to the district attorney's office was not made prospectively. It 
appears in the testimony of both Mudgett and Allen, that it was not men- 
tioned till after judgment by default. It therefore, I should think, could 
have had nothing to do with the institution of the suit. When applied to 
by him, Mr. Smith raised the same objection which he had made on my ap- 
plication — declined to proceed — did so only after repeated importunities, and 
then as an experiment solely. This was the pioneer suit — ^the first case pro- 
secuted in New York under the confiscation laws of 18G1 and 1862. 

As stated in my former testimony, when Mr. Mudgett applied, Mr. Smith 
had forgotten my application. He had forgotten it, too, under circumstances 
which Avould have rendered his recollection of it remarkable ; for at my 
interview Avitli him, I mentioned several cori^orations at the same time that 
I spoke of the Minnesota Company ; I left no paper ; no memorandum was 
made ; and Mr. Smith was occupied with the pressure of official business of 
many kinds growing out of the war. When he told me, as stated in my 
former testimony, that he had forgotten my call, his manner was sincere. 

It has been said that Mr. Smith should have proceeded under the second 
law alone, and not under the first, because the former does not provide for an 
informer and the latter does. If he had done so, he would not have en- 
couraged the execution of these laws in other cases. But he did, in fact, pro- 
ceed under both laws, as was his duty, so that, in case of litigation, he could 
succeed under either or both, according to the jjroofs. It is the practice, I 
believe, in the United States courts, to bring suit under all laws relating to 
the same subject, and under which such suit may be maintained. 

As no defence was interposed, the bill was taken as confessed, all the allega- 
tions were alike held true, the court decreed judgment of condemnation by 
default without proofs, and the informer's right to recover his share became 
fixed. Mr. Smith could not deprive him of it, as was held by Mr. Justice 
Davis of the Supreme Court of the United States, in a case determined in 
Indiana, wliich I have examined, and in which the district attorney went 
into court and opposed the informer's claim. 

It is only fair and just that these facts and considerations should be set 
forth in behalf of Mr. Smith by some one. My own unintended connection 
with reflections cast i;pon him in reference to this case, has since led me to 
look into the matter with a good deal of care ; and I have made this supple- 
mentary statement somewhat elaborate, because I feel it due to him and to 



CASE IN TUE EIGHTH CIRCUIT, 47 

me that I should state not only my conviction of the correctness and honesty 
of his conduct, but also my reasons for that conviction. The character of 
Mr. Smith in this community has always stood high. His connection with 
this case has furnished the only criticism, so far as I know, which his official 
and professional acts have ever received ; and I shall be glad if the additional 
facts and explanations here given shall contribute to the entire exculpation 
to which I believe him entitled. 

Very respectfully, 

Geo. p. Nelson. 

State op New York, ) 
City and County of Neic Tori:, ) ' 

On the seventeenth day of May, 1867, before me appeared George P. Nelson, 
with whom I am personally acquainted, who being by me duly sworn, 
deposes and says, that the foregoing statement made and signed by him, is 
true, to the best of his knowledge, information and belief. 

ElCHD. Stacpoole, 
[l. s.] Notary Public, 

City of New York. 

CASE m THE EIGHTH CIRCUIT. 

ABSTRACT OF EECORD. 

United States Clrcctit Court, Eighth Circuit, District op Indiana. 

Before the Honorable David Davis, Associate Justice of the Supreme Court 
of the United States. 



The United States 

vs. 

$109,000 OP Indiana State Stock and 

$13,000 IN CASH, OWNED BY SAJttUEL, MlL- 

LER, OF Virginia. 



Libel filed February 29, 1864, against the stock and accumulated interest. 

Alleges, in substance, 1 . That Miller has aided and abetted the rebellion, 
contrary to the provisions of the act of July 17, 1862 ; and 2. That interest 
paid on the stock has been used and employed by him in aiding the rebellion, 
contrary to the provisions of the act of August 6, 1861. 

Avers the filing of information ; prays that the state officers may be cited 
to account for the stock and accumulated interest, and asks judgment of con- 
fiscation, &c. 



48 APPEKDIS. 

Monition issued and publislied. Summons issued to auditor and other 
state officers. 

March 19, 1864, Miller's default entered. The state officers appeared and 
answered, acknowledging that they held the stock, (describing it,) and also 
the accumulated interest belonging to Miller. The libel is not traversed, 
except that with regard to the interest on the stock, they state that it has 
not been paid to Miller nor to any person for him. The answers pray the 
protection of the court for the state and its officers. 

Judgment of condemnation and sale entered. 

May 12, 1865. The district judge having died, and his successor having 
been one of the counsel in the cause, the suit was transferred to the Circuit 
Court. 

May 24, 1865. Writ of venditioni exponas returned. 

June 5, 1865. Final decree. The following provisions contained in it are 
quoted entire : — 

" And the court having inspected the record herein, and the same appearing 
to have been a cause of magnitude and importance, the com-t do approve the 
employment, by the district attorney, John Hanna, Esq., of Messrs. McDonald 
and Roache, as associate counsel for the government, in the management of 
this cause, and do now allow to the said district attorney the sum of twenty 
five hundred dollars, and to said McDonald and Roache a like sum of twenty 
five hundred dollars for their respective services in this cause, and do order 
the same to be paid to them by the clerk out of the fund in his hands for 
distribution. 

"And it further ax)pearing to the court, that infoi'mation was in this canse 
given to the officers of the government Jjy means tchereof the seizure, confisca- 
tion and sales in this cause were made, and the fund herein was realized, the 
court do find, that after paying all allowances, costs and commissions, as well 
those due in the District Court, from which this cause was transferred, as in 
this court, that one half the net proceeds belongs to the infokmeb 
HEREIN, and one half to the government of the United States : It is therefore 
ordered by the court," &c. 

March 26, 1866. Record exemplified by the clerk under the seal of the 
court. 

The record above mentioned is accompanied by the following letter : 

Clerk's Offices United States Courts, 
Indianapolis, Indiana, March 30, 1866. 
Hon. E. Delafield Smith, New York, 

Dear Sir : — In the case of the U. S. w. |109,000 bonds, &c., and Samuel 
Miller, the record of which has been sent you, I assure you, of my own 
knowledge, that the right of an informer to claim a moiety of the property 
condemned and sold, under the acts of Congress specified in the libel, was ex- 
pressly raised, and I think counsel heard on the point; and that Judge 
Davis examined the statutes and decided orally the question, in that case, 



LAW, PRACTICE AND PRECEDENT. 49 

admitting the informer's right. Mr. Hanna, the government attorney, ia 
not here, or he would join in this statement. 

Yours very truly, 

J. D. Ho-WXAND, Clerk. 

NOTE. 

LAW, PRACTICE AND PRECEDENT. 

The records referred to in the text at page 25, are of cases prosecuted in 
a number of the principal judicial districts of the United States. The Indi- 
ana case is placed at the head of the list, because, having been transferred to 
the Circuit, it was disposed of by a Supreme Court judge. The other cases 
were each determined in a District Court, as that would have been but for 
the death of the district judge. 

As stated in the text, the proceedings are reqiured by law to conform to 
those in " admiralty or revenue cases." (12 U. 8. Stat. 591, § 7.) Where, 
therefore, no appearance is entered for the owner of the property proceeded 
against, the usual course of the judges has been to order judgment of con- 
demnation and sale by default, taking the libel " as confessed,'* without 
proofs. {Benedicfs Admiralty Practice, g§ 452, 454.) Some judges (and this 
is a question for them and not for the prosecuting attorney) have thought 
that proofs ought to be required even upon default of the owner to appear. 
Such, however, is not the practice in " admiralty or revenue cases," as may 
be seen by attending the United States District Court in New York on any 
Tuesday, which is a " return day of process," or by referring to the law re- 
ports in a newspaper published on any Tuesday evening or Wednesday. 
The libel is properly so drawn as to admit of the application of both statutes. 
The grounds of forfeiture are thus made broad, as they ought to be to meet 
any facts as they may be developed, and any defences which may be inter- 
posed. If the district attorney proceed under two laws separately, when he 
could file a single libel under both, the two suits will be " in effect con- 
solidated," as was done by the court in the Philadelphia case cited in the text. 

The allegations of the libel being made — and properly so — under the two 
laws, it follows that if it be taken " j)ro confesso," and the judgment directed 
by the court to be entered by default, as in admiralty and revenue cases, 
the forfeiture necessarily proceeds as much under one law as the other, and 
therefore under both. The informer's right to share thus becomes fixed in 
that way. The dicta of Mr. Justice Nelson in the Wiley case, (where, al- 
though the question was not discussed by counsel, that distinguished jurist 
expressed an impression unfavorable to the informer's claim as there allowed 
by Jud^e Betts,) do not apply to the Mercer case ; for in the Wiley case, an 
appearance was entered and proofs were taken ; while here, there was no ap- 
pearance, and judgment was entered by default without proofs. (See Mr. 
Justice Nelson's letter at page 51.) 

But in the Indiana case, where the point was expressly raised and consid 
ered by Mr. Justice Davis, an accomplished member of the United States 
Supreme Court, the righif is enforced as absolute ; and it is there, in effect 

4 



50 APPENDIX. 

held to depend, not upon the mode of proceeding or the effect of a default, but 
upon a comprehensive construction of the two laws taken together. This 
conclusion is not necessary to sustain the award to the informer in the Mer- 
cer case ; but a thorough examination will show it is the true one. As 
stated in authorities cited in the text, " where one act is followed by another 
which does not repeal the first, and both are in pari materia, they are to be 
construed together, and effect is, if possible, to be given to every provision 
of each." The clerk of the Indiana court writes, " Judge Davis examined the 
statutes, and decided orally the question in that case, admitting the informer's 
right." And this, although the record, through the answers filed by the 
custodians of the stock, showed that while it was true that the owner was in 
the army, neither the property nor its income had been used to aid the rebel- 
lion, and that therefore the facts were such as the act of 1862, rather than 
that of 1861, made the basis of confiscation. The broad and equitable view 
of the court is manifest in the language of the decree, as follows : " And it 
further appearing to the court, that information teas in this cause given to the 
officers of the government by means whereof the seiztire, confiscation and sales 
in this cause were made, and the fund herein was realized, the court do find, 
that after paying all alloicances, costs and commissions," &c., one half the 

NET PEOCEEDS BELONGS TO THE INFORMER HEREIN, and one half tO the 

government of the United States." If any lawyer be found to say, that the 
informer in the Mercer case was not entitled to share, he ought to be candid 
enough to admit, that eminent judges have thought otherwise ; and that 
judgments are given, not by district attorneys, but by courts. My own 
position is — 1. That the right is sustained by law, authority, practice and 
public policy ; 2. That assuming it is not, a question as to the informer's right 
did not, and would not naturall.y, present itself to my mind, and was not sug- 
gested by any person throughout the prosecution of that case ; 3. That 
Judge Betts signed this decree after retaining it several days, and after a 
careful examination of the two statutes. 

If the confiscation laws Avere or could be administered without a general 
application and enforcement of the provision for informers contained in the 
one first passed, they would in that respect signally differ from other similar 
statutes of the United States. Whenever seizures and forfeitures are provided 
by the law making power, a portion of the proceeds to be recovered is pro- 
mised to those who give information of the violations of law which those pen- 
alties are designed to prevent. This feature of our legislation is copied from 
that of other countries where its necessity had been demonstrated. Such 
provisions are uniformly found in the neutrality laws ; in the laws relating 
to the revenue both from customs and from internal impositions ; in the laws 
for the suppression of the slave trade ; and in those regulating proceedings 
in prize cases. It would have been remarkable if any judge or district at- 
torney, impressed with the duty of administering the confiscation laws in the 
midst of the late war when their enforcement was of national importance, 
had been ingenious to construe away, or quick to assume the repeal or limi- 
tation of this premium upon informations, without which the laws them- 
selves would have been substantially a dead letter. * 



ASSISTAISTT DISTEICT ATTORNEY ANDREWS. 61 

NOTE FROM Mr. JUSTICE NELSON. 

June 13, 1867. 
Dear Sir : 

I have no objection to state, as is the fact, that while under the evidence 
taken in the Wiley case it was my opinion that the informer had no right to 
share in the proceeds, yet, as these statutes are framed, and were new and 
untried, I can easily see how tliis view of the law should have escaped both 
yourself and Judge Betts. And, if the judgment had been taken by default 
without any testimony, (as I understand was the course in the Mercer case,) 
my opinion in the result might have been different. 

Very truly yours, 

S. Nelson. 
E. Delafield Smith, Esq. 

CERTIFICATE OF THE COMPTROLLER OF THE TREASURY. 

Treasury Department, 
First Comptroller's Office, Julp 1, 1867. 
E. Delafield Smith, Esq., 

late U. S. Attorney, New York City : 
Sir : — Your note of the 28th ult., requesting an official statement relative 
to an item of account, has been referred to me. 

In compliance with said request I have to state that in your report of fees 
and charges in confiscation cases allowed to and received by you up to 30th 
June, 1864, there was included the sum of $1,237 87 allowed in the case 
of " The U. S. vs. 700 shares of the capital stock and dividends due thereon 
of the Minnesota Mining Company, belonging to Hugh W. Mercer." Said 
sum did not go to your use so as to effect an increase of compensation, but, 
like all costs in suits for the confiscation of rebel property, was accounted for 
to the treasury in your emolument return for the year ending 30th June, 
1864. 
The case specified stands first in your report of confiscation cases. 
Very respectfully, 

R. W. Tayler, Comptroller. 

AFFIDAVIT OF ASSISTANT DISTRICT ATTORNEY ANDREWS. 

CUi/ and County of New York, ss. 

George P. Andrews, being duly sworn, says, I was assistant United States 
district attorney during the ofiicial term of Mr. E. Delafield Smith, and also 
under his successor, Mr. Daniel S. Dickinson, and his predecessors, Mr. 
Theodore Sedgwick and Ex-Judge James J. Roosevelt. 



S3 APPENDIX. 

In the spring of 1863, Mr. Benjamin F. Mudgett (then and until within 
a few weeks past a deputy collector of the custonas) called at the oifice and 
inquired for Mr. Allen and for Mr. Smith, and they both being out, he had an 
interview with me in their absence. His business was to procure, as informer, 
a prosecution of certain stoclt in the Minnesota Mining Company, owned by 
Hugh W. Mercer, a general in the rebel army, with a view to its confiscation. 

As I had special charge of the prize cases, I kept on fly-leaves of my own 
copy of United States statutes, a reference to laws concerning prize captures, 
and also to other enactments relating to forfeitures of property, as proceedings 
in prize were apt to be affected by such other statutes. Turning to the two 
confiscation laws, I looked at them and told him I did not think a seizure 
and condemnation of the stock referred to could be had. I understood he 
afterwards saw Mr. Allen on the subject. The fact was, no confiscation case 
had been commenced since the fall of 1861, when a; number then pending 
were discontinued and the prosecution of such proceedings discouraged by 
the government. Since then the subject had received no attention in the 
office, and applicants (of whom there were many) were quickly dismissed. 

The case afterwards conducted upon the information of Mr. Mudgett and 
the other confiscation suits which followed were attended to by Mr. Allen, 
and I was wholly occupied with other duties. 

In the spring of 1864, months after the Mercer case was ended, Mr. Mud- 
gett called and passed through the room then occupied by me into that of 
Mr. Smith. In the partition between them were two windows and a door 
which was open. I heard the conversation wliich ensued, and I will state 
its substance. Mr. Smith said, " What does this mean ? I hear they are 
saying at the custom house you had to pay to get the Mercer case attended 
to." Mr. Mudgett, interrupting, " I have never said any thing of the kind." 
Mr. Smith continued, " You know it is not true ; the allowance from your 
receipts was on your own proposition, made when you were delighted because 
we had obtained judgment ; now if you have become dissatisfied, I will repay 
it to you." Mr. Mudgett 's reply was, " Mr. Smith, there is some mistake 
about this ; no one ever got any such story from me ; I want nothing from 
you, for it was all perfectly voluntary on my part, perfectly." His peculiar 
pronunciation of the word " perfectly" (as though spelt "pur") struck me at 
the time. I have given substantially what he said in nearly as possible his 
own language. 

Mr. Smith told him it was his duty to silence such a slander. Mr. Mud- 
gett said he would, and would give those men down there (referring to the 
custom house) notice to mind their own business, as he was 6ld enough to 
take care of himself. 

George P. Andrews. 



Subscribed and sworn to before me, 
this 1st day of July, 1867, 



1 



William Girod, 

Notary Public, iV. Y. City. 



STENOGRAPHER OF THE COMMITTEE. 53 

NOTE FROM Mr. JOSHUA F. BAILEY. 

61 Chambers Street, 18th June, 1867. 
Hon. Cax\tn T. Hulburd, 

My Dear Sir : — During the spring of 1864, while I was acting as a special 
agent of the treasury department in this city, I examined deputy collector 
Mudgett at the custom house, in relation to the Mercer confiscation case, at 
the instance of one of the officers of the customs. 

So many matters were then occupying my attention that I cannot at this 
time recall the particulars of Mr. Mudgett's statements to me, and the notes 
of the examination have been mislaid. I do remember, however, that they 
were not such as to make on my mind any impression unfavorable to Mr. E. 
Delafield Smith, then the U. S. District Attorney. If it had been otherwise, 
I should have pressed the inquiry further ; as it was, I dropped it with the 
examination of Mr. Mudgett. 

I am, respectfully and truly, 

J. F. Bailey. 

AFFIDAVIT OF THE STENOGRAPHER OF THE COMMITTEE. 

State of New York, ) 

County of Onondaga, City of Syracuse, \ ^^' 

Theodore F. Andrews, residing in the city of Syracuse, being duly 
sworn, deposes and says : 

Under the employment of the congressional committee, of which Hon. C. 
T. Hulburd was chairman, I, as stenographer, took down in short hand the 
examination and testimony of Benjamin F. Mudgett before Mr. Hulburd, 
October 20th, 1864, and afterwards copied the testimony out. From my 
manuscript the testimony was printed as it appears in the congressional re- 
port. I have compared the printed testimony with my manuscript, and they 
agree. The testimony as printed is a faithful transcript of what Mr. Mudgett 
stated on the examination. 

After his examination was closed, Mr. Mudgett left his seat and stood up 
before the fireplace and conversed freely, and in answer to a question put to 
him by a gentleman standing near him, as to how he came to part with a 
portion of his receipts as informer in the case in question, he replied in sub- 
stance that he promised it because he thought it would help the case along, 
and gave it because he had promised it, and it was his own to do as he 
pleased with, but that Mr. Smith had never done or said any thing to make 
him do it, and it was a notion of his own, and entirely voluntary on his part. 

The testimony itself seemed to make very little impression at the time, and 
when Mr. Smith afterwards came before the committee lie was told it was 
not necessary for him to be examined, and Mr. Mudgett's testimony was not 
shown him, as it was not written out, and my notes were not at hand. 

Theodore F. Andrews. 
Subscribed and sworn before me, ) 
this 17th day of June, 1867, J 

H. Wheaton, J. P., &c. 



54 APPENDIX. 

NOTE FROM Mr. BETTS, CLERK OF THE UNITED STATES DISTRICT 
COURT, NEW YORK. 

New York, June 13, 1867. 
Hon. C. T. HuLBtJUD, 

Sm : — I saw Mr. Mudgett several times during the progress of the settle- 
ment referred to by my assistant, and so far as my observation and knowledge 
went, I concur fully in the statements expressed in the accompanying note. 
I heard Mr. Mudgett express his satisfaction with the manner that the business 
had been conducted through the office of the district attorney, and this after 
the settlement, as well as during the progress of the case. 

Yours truly, 

Geo. F. Betts, 
Clerk U. S. District Court. 

note from the assistant clerk. 

United States District Clerk's Office, 
Sonthern District of New York, 

New York, June 12th, 1867. 
Hon. Calvin T. Hulburd, 

Sir : — As assistant in the office of the clerk of the United States District 
Court in this city, I kept the court dockets, and attended to all the details of 
the confiscation cases prosecuted in this district in 1863 and 18G4. I well re- 
member the first and leading suit, called the Mercer case, in which Mr. 
Mudgett was the informer. 

When Mr. Mudgett, accompanied by Mr. Allen, took the four certificates 
of the stock which represented his purchase, and carried them away with him, 
and also when, several days afterwards, he received a check for the balance 
of his information money, he expressed himself gratified and pleased with 
the result, and with his own good fortune as informer in realizing as he had, 
and he appeared and expressed himself particularly pleased with District 
Attorney Smith and his assistant. I remember these facts specially, because 
I myself gave Mr. Mudgett his certificates and paid out the checks in closing 
that case, and Mr. Mudgett was emphatic in his demonstrations of satisfac- 
tion. In his frequent visits to our office during the prosecution of this and 
other cases, the same gratification, so far as the district attorney and his 
office were concerned, was shown by him. 

Under these circumstances I scarcely need say, that I was surprised to 
learn, some year or two afterwards, that he had said any thing indicating a 
different feeling on his part. 

Respectfully yours, 

R. S. BULLUS, 

Assist. Clerk. 



MR. ALEXANDER FULLERTON. 55 



NOTE FROM Mr. CHAMBERS. 

Office of Chambers & PosrEROT, 

New York, June 13, 1867. 
Hon. Calvin T. Hulburd, 

Sir : — I was counsel for Mr. Alexander Fiillerton, secretary of tlie Minnesota 
Mining Company, in the suit brought by him in 1863 to enforce his claim to 
a part of the proceeds of certain stock of that company which had been confis- 
cated by the United States government, as the property of Hugh W. Mercer. 

The claim was foimded upon the fact, alleged by the plaintiff", Fullerton, 
that Mr. Mudgett's information as to Mercer's stock in that company was 
originally given to Mudgett by Fullerton, upon the express agreement that 
Mudgett should use such information to secure the confiscation of the stock, 
and should account and pay over to Fullerton one half of all moneys to which 
Mudgett might become entitled as the informer in the case. 

Some time after the commencement of the suit by Fullerton I called on 
the United States district attorney, Mr. Delafield Smith, at his oflace, in refer- 
ence to this claim, when he expressed his surprise at hearing of the claim of 
Fullerton, and also his desire, so far as it was in his power, that justice should 
be done to Mr. Fullerton, At a subsequent interview Mr. Smith informed 
me that he had inqviired of Mr. Mudgett as to this claim, and that the latter 
utterly repudiated it, but that, nevertheless, upon the statements made on 
behalf of Mr. Fullerton, he (Mr. Smith) would propose on behalf of himself 
and Mr. Allen to transfer to Mr. Fullerton a portion of the stock held by 
them respectively. The proposal was accepted on the part of Mr. Fullerton, 
and the transfer of (I believe) one third of the stock held by Messrs. Smith 
and Allen was accordingly made. Both Mr. Fullerton and myself had every 
reason to be satisfied with the liberality and sense of justice manifested by 
Mr. Smith, and with the frank and handsome manner in which he came for- 
ward in the matter. 

Very respectfully yours, 

Wm. p. CHA3IBERS. 

NOTE FROM Mr. ALEXANDER FULLERTON. 

Ne-w York, June 28, 1867. 
Hon. C. T. Hulburd, 

Dear Sir : — I have read the foregoing letter, and the same is correct. But 
for the sense of justice and honorable action of E. Delafield Smith, Esq., I 
should have been deprived of all return for the information which I was in 
fact the first to give, and which Mr. Mudgett used without disclosing my 
name. 

But for my information, Mr. Mudgett would never have known that Hugh 
W. Mercer was a stockholder in the Minnesota Mining Company. 

Yours truly, 

Alex. Fullerton, 

71 Broadway. 



56 APPENDIX. 

LETTER FROM JUDGE WILLIAM FULLERTON. 

New York, June 20, 1867. 
Hon. C. T. HuLBURD, 

Dear Sir : — It is due to Mr. E. Delafield Smitli that I slioiild make a state- 
ment as to the origin of a letter written by B. F. Mudgett to liis assistant, 
Mr. Allen, and referred to in Mr. Smith's letter to you, under date of June 
5, 1867. 

The history of that letter is as follows : — I was connected with the first con- 
fiscation case prosecuted during Mr. Smith's administration of the office of 
district attorney, as counsel for the Minnesota Mining Company. I was em- 
ployed by that company to protect its interest and to see that the confiscation 
was not to their prejudice. 

During the progress of the litigation, at a meeting of the board of directors 
of that company, they remarked that the funds of the company ought not to 
be used to pay for any services which I rendered, inasmuch as they acted 
simply as stakeholders, and suggested whether my compensation could not be 
obtained out of the fmid. I told them I thought it could not, but if they desired 
I would present the matter to the district attorney. I did so at a subsequent 
interview with him. His reply was, " The United States can give nothing, 
under any circumstances, but if Mr. Mudgett, the informer, sees fit to make 
any allowance out of liis share of the proceeds I do not see that there can be 
any objection to it." My answer was, that if he saw fit to propose it 
to Mr. Mudgett he might do so. Mr. Smith's reply was, that he would bring 
it to Mr. Mudgett's attention ; and he afterwards informed me that he had 
suggested the matter, and that Mr. Mudgett had agreed to give a per- 
centage of his share of the proceeds of the property as a fee to the coimsel to 
the company. 

Some time after the amended decree of confiscation had been entered the 
proceeds of the property were divided. I received from Mr. Mudgett a check 
for ten per cent, of the amount which was coming to him as adjudged to him 
by the decree. This he gave to me voluntarily when Mr. Smith was not 
present, and at the same time remarked that he was not making as much 
out of it as was supposed, because he was giving Mr. Allen, the assistant dis- 
trict attorney, a large fee for the extra trouble bestowed upon the case. Mr. 
Smith was not present at that conversation. Mr. Allen was. 

Some time after the receipt of the fee paid to me as herein mentioned, 
I received a letter from Mr. Mudgett threatening me with some proceeding 
in the United States court unless I returned the amount, and intimating 
that I had taken it without the knowledge of my clients. In reply to that 
letter I wrote to Mr. Mudgett as follows : 

[This note declines, in strong language, to accede to Mr. Mudgett's demand.] 

At this time I thought it to be my duty to see Mr. Smith and put him on 
his guard against a man of so treacherous a character. Consequently I called 



PAPERS AND LETTERS OF MR. MUDGETT. 51 

and stated to him the correspondence between Mudgett and myself, and 
warned him if Mr. Allen had received any thing from Mudgett, (as I was 
induced to believe from what Mudgett had said at the time of the final dis- 
tribution,) that there would be trouble unless the voluntary nature of the 
transaction were put in black and white ; that Mudgett would resort to some 
means or other to put Mr. Allen and himself in a false position if he could. 

Mr. Smith did not seem to think it possible that Mudgett would or could 
misrepresent the transaction to his or Mr. Allen's injury. But I assured 
him that he did not know Mudgett, and Mr. Smith finally said that he would 
take the precaution to get some kind of letter from Mr. Mudgett to show the 
real transaction, which I afterwards understood he did. 
Very respectfully. 

Your obedient servant, 

William Fullerton.* 

PAPERS AND LETTERS OP Mr. MUDGETT. 

letter to mr. allen. 

Custom House, New York, 
Collector's Office, Aug. 3, 1863. 
Sir: 

As a token of the satisfaction by me as informer in the matter of U. S. 
agst. certain shares of the Minnesota Mining Company belonging to the rebel 
general Hugh W. Mercer conducted by you so far as my interest was con- 
cerned, I have directed to be delivered to you one half that shall be awarded 
to me as informer, which I do cheerfully and voluntarily ; and besides, please 
accept my thanks which are hereby extended to you and the district attorney 
for your united energy and promptness in this matter, and by which you 
have rendered a faithful service to the government. 

Yours truly, 

B. F. Mudgett. 
To Ethan Allen, Esq. 

[In relation to this letter see page 29.] 

* New York, Ajnil 8, 1865. 
Hon. Calvin T. Hulburd, 

C/iairman Congressional ConimitUe, 
Dear Sir : • 

I have received a document containing your report. In looking over my evidence as 
printed, I observe that the stenographer understood me as testifying that Mr. Smith said 
to me that he had no interest in the compensation to Mr. Allen in the Mercer case. Mr. 
Smith did say (as appears to have been the fact) that it was given to Mr. Allen ; but the 
inference that Mr. Smith was not interested in it was my own, and not Mr. Smith's state- 
ment. It seems to be proper that I should make this correction, for, as I understand the 
matter, it was not one that Mr. Smith ever concealed, or had any occasion to conceal. If 
the committee could have imderstood it as well as I do, it would not have been al- 
lowed to prejudice a gentleman of Mr. E. Delafleld Smith's standing. 

Yours respectfully, 

WrLLiAM Fullerton. 



58 APPEKDIX. 

TO THE CLERK OF THE COURT. 

[Mr. Mudgett having become a purchaser of part of the stock at the mar- 
shal's sale, requests the clerk of the court to have the certificates made out 
in Mr. Allen's name. The body and signature of this paper are both in Mr. 
Mudgett's handwriting, as follows ;] 

Geo. F. Betts, Esq. : — 

Having purchased shares of the capital stock of the Minnesota Mining 
Company now in your hands in the suit of U. S. vs. 700 shares of the capital 
stock of said company, &c., please make out certificates of said shares pur- 
chased by me in the name of Ethan Allen in four equal parts, as near as 
convenient, I being about to leave town for a few days. 

Yom-s, &c., 

B. F. Mudgett. 
N. Y., Aug. 5, 1863. 

BLANK RECEIPT. 
[This receipt was left by Mr. Mudgett with Mr. Allen ; but was never used.] 
U. S. DISTRICT COURT. 



The United States 
against 
Shares of the Capital Stock of the 
Minnesota Mining Company, belonging 
TO Hugh W. Mercer. 

Received, New York, August 1863, from George F. Betts, Esq., clerk 

of the United States District Court, dollars, in full of my distributive 

share under the decree in this cause. 

B. F. Mudgett. 

letter to MR. ALLEN. 

Custom House, New York, 
Collector's Office, Aug. 10, 1863. 
Sir: 

I think you had better have the clerk make the certificates in your name, 
if he will, as the company would not be so likely to make trouble as if in 
' my name. [See Mr. Allen's statement at page 64.] 

You need not say to Betts that I have returned. I will call in at 3, if I do 
not hear from you before. 

Do what \vill be the best interest of the holders. It would be great folly 
for the company to do as you state they threatened, as by so doing that 
would cut off all equitable claim they might have against the government, 
while it would not legally affect the certificates. 

Yours truly, 

B. F. Mudgett. 
Ethan Allen, Esq. 



PAPERS AND LETTERS OF MR. MUDGETT. 59 



TO THE CLERK OF THE COURT. 

[Mr. Allen having declined to have the stock purchased by Mr. Mudgett 
taken in his (Mr. Allen's) name, Mr. Mudgett requests that t"he certificates be 
issued to another person.] 

(title of the cause.) 

George F. Betts, Esq., 

Clerk of the United States District Court, 
Sir: 

Please have the three hundred and thirteen shares of the stock of the 
Minnesota Mining Company, purchased by me in this suit at eighty five dol- 
lars per share, as per return sales in your hands, transferred to and in the 

name of , in four certificates, three of seventy eight shares each, and 

one of seventy nine shares. 
New York, August 10, 1863. 

Yours respectfully, 

B. F. Mudgett. 



letter to MR. ALLEN. 



Oct. 1, 1863. 



Dear Allen: 

I saw Mather last evening ; he recollects fully all the conversation, and 
the talk he and I had immediately after, and that there was no talk or in- 
timation on the part of [Alexander] Fullerton that he desired or claimed an 
interest. 

Yours, &c., 

B. F. Mudgett. 
E. Allen, Esq. 

LETTER to MR. ALLEN. 

JDe' 1,1863. 
Dear Sir : 

Don't move on Bank of Republic for a few days. I will be able to know 

from a personal examination. 

Yours, &c., 



B. F. Mudgett. 



Mr. Allen. 



LETTER to MR. ALLEN. 



Custom House, New York, 
Collector's Office, Dec. 28, 1863. 
Dear Sir : 

I send you the dates and stocks in the Bank of the Republic, as they ap- 
pear by inspection. 



60 



APPESTDIX. 



These cases require considerable attention. Please look to them individu- 
ally aside from your duties as an officer, and I will divide equally with you 
what shall be made. 

Yours truly, 

B. F. MUDGETT. 

Ethan Allen, Esq. 

Note. — In the cases mentioned in the above letter, no stock of rebel owner- 
ship was found, and nothing was realized. 

STATEMENT OP ASSISTANT DISTRICT ATTORNEY ALLEN.* 

In regard to the confiscation suit in which the stock of the rebel general 
Hugh W. Mercer, in the Minnesota Company, was condemned and sold in the 
summer of 1863, I have to state as follows : 

The witness, George P. Nelson, who testified before the congressional com- 
mittee that he called at the district attorney's office and had a conversation 
with Mr. Smith a few months before Mr. Mudgett filed a written informa- 
tion, was never heard of by me in any way in connection with this matter 
till I learned of his testimony before the committee during the month of 
Mai'ch, 1865. An old file of informations against rebel property contains one, 
signed, sworn to and filed by Mr. George P. Nelson, Sept. 4, 1861, as in- 
former against certain drugs and chemicals of rebel ownership, but it did not 
relate to Mercer nor to any stock in this company. And all confiscation pro- 
ceedings set on foot so far back as that were dismissed by direction of the 
government, and none again attempted till this Mercer case was com- 
menced. 

With respect to Mr. Mudgett, my recollections are as follows : Some time in 
April, 1863, Mudgett met me in the chambers of the Supreme Court, and told 
me of this stock of Mercer's, and was anxious to realize as informer. I told 
him I thought nothing could be done with it. It is very likely I said you 
can get nothing out of it, meaning that the stock could not be successfully 
prosecuted. That in 1861 we had attempted confiscations in about fifty suits, 
and all were suddenly stopped by instructions from Washington. That 
since then the new law of 1862 had been passed, but that I did not see how 
this stock could be seized, and therefore it could not be condemned. That 
no confiscation case, except forfeitures under the revenue laws, had ever yet 
been carried through, and I did not believe the district attorney would allow 
a confiscation suit to be commenced unless he felt sure he would be success- 
ful in the prosecution. Mr. Mudgett thought differently, and we parted. 
Some time afterwards I found a written information against Mercer's stock, 
signed by him, upon my desk. I inquired when it had been left, and put the 
date of the receipt at the office upon it, which was May 12, 1863, and filed 
it, it being the first written information oflFered since the additional act of 



*Mr. Allen was appointed an assistant *by Mr. E. Delafield Smith ; was retained by the 
late Mr. Daniel S. Dickinson, and is still continued in office under the present district 
attorney, Mr. Samuel G. Courtney. 



STATEMENT OF MR. ALLEN. 61 

18G3. Within a day or so another information was sent or left by Mudgett 
to be filed, against the same stock, and which was explanatory of and fuller 
than the first. Subsequently, Mudgett met me on the street and elsewhere 
several times, and urged the prosecution of this suit. He said he had 
examined the laws and thought that they might be enforced ; and that 
if I would get Mr. Smith's ear for an hour and go over the case with 
him, he believed Mr. Smith would consent to begin the suit. I still, upon 
all such occasions, reiterated my opinion as already stated, that the difficul- 
ties in seizure and in proofs were such as to make it folly to attempt the con- 
fiscation of this stock. Mr. Smith heard Mr. Mudgett, and concluded that if 
these statutes could be enforced at all against stocks of a foreign corporation, 
no fairer case for the attempt could be presented than this of General Mercer, 
and he gave direction that the experiment should be tried. 

This confiscation business was at that time so new to our offiice, that I wrote 
to Mr. Carrington, the United States district attorney at Washington, or to 
his assistant, Mr. Nathaniel Wilson, and obtained the form of letters used by 
him in directing the marshal to make seizures in confiscation suits which he 
had commenced, but which he had not yet carried to condemnation. I there- 
upon drafted a like letter to the marshal here, filling up Mr. Carrington's 
printed blank. Upon receiving it, the marshal served a notice upon the 
company. A libel of information was filed June 5, 1863, drawn under the 
statutes of 1861 and 1862, and in accordance with the circular instructions of 
the attorney general of the United States, which treated the two laws to- 
gether as one. These had been received some time before Mudgett's applica- 
tion, and they were very different from the instructions sent in 1861, direct- 
ing the discontinuance of all confiscation suits not called for by the strictest 
construction of the law. The substance of the information was advertised fif- 
teen days, as the law requires, in the public press. It appears in the libel that 
condemnation was asked against the stock of Hugh W. Mercer, therein de- 
scribed, for the benefit of the United States and the informer mentioned in the 
libel, in equal parts. On the return day of the monition, which was on the 
23d day of June, the case was called, no defence was made, and the court, as 
appears by the entry of its clerk in the minutes, directed the property to be 
condemned by default without proofs, the allegations of the libel being taken 
'pro eonfesso. And a decree of condemnation and sale in accordance with the 
libel was ordered by the court. 

On the afternoon of the day of condemnation, or on the afternoon of the 
next day, Mudgett called at the district attorney's oflace, and was very much 
elated at what had happened. Said he had heard of it, or had seen an account 
of it in the newspapers, and thought he would step in on his way up town. 
Mr. Smith was not in the office, and Mudgett talked with me in Mr. Smith's 
absence. I told him I was surprised that there was no defence, and I said 
that the judge ha^dng condemned the property by default, the next thing 
was to make the Minnesota Mining Company transfer the stock. Mudgett 
then said we had done well in the case, and if we coiild carry the thing 
through he intended to be liberal. Nothing was asked or demanded of him, 
and voluntarily he gave me to understand that he designed to divide liis in- 



62 APPENDIX^. 

• 

terest with me. As near as I can recollect tlie language, it was this : After 
congratulations, Mudgett said, " I intend to be liberal with you ; I am bound 
to do the handsome thing, and I propose we go snacks ; if I get $15,000 out 
of it I shall be satisfied." I answered, " That is a matter about which I must 
refer you to the district attorney.-" Mr. Mudgett left, and said he would 
speak to Mr. Smith about it. This was the first intimation or offer in the 
progress of the suit, of any interest to be given by the informer. 

I did not arrive at the office the next morning till late. It was about 11 
o'clock in the forenoon when I saw Mr. Smith for the first time since the 
above interview. He said to me, " Mr. Mudgett has been here this morning, 
and says he is willing to give you one half of his interest as informer ;" and 
continued Mr. Smith, " I told him I saw no impropriety in it, if he chose to do 
so." I then repeated to Mr. Smith my interview with Mr. Mudgett on the 
day before substantially as stated above, and told him that if Mudgett should 
actually do it, and he saw no reason for my refusing it, we would divide 
whatever Mudgett chose to give. " Well," said Mr. Smith, " I see no objec- 
tion to it, for the interest of the government and of its informer are the same, 
and if it has any influence at all, it can only be to incite to greater diligence, 
by which the United States will be equally benefited ; the government will 
receive all it is entitled to by the decree, and this will be the personal pro- 
perty of Mr. Mudgett." I never felt at all certain that Miidgett would at last 
make this allowance, until I found that he was actually arranging for the 
division of the stock bought by him into several certificates, and he said, 
" This has cost me nothing ; I mean to make you a present out of it." 

As before mentioned, the court's direction for the filing of the decree was 
entered in the minutes by the clerk on Jime 33d. Between that date and 
July 7th, the letter books and records of the district attorney's oflBce show a 
constant succession of personal and written applications to the company and 
its officers for a transfer of the stock to the marshal or court. The filing of 
the formal decree which the court had directed to be entered as aforesaid, 
was suspended during that interval, because the district attorney thought the 
transfer of the stock ought to precede it. But the company's officers, in addi- 
tion to many other objections, finally insisted that at all events the formal de- 
cree must be first filed and served upon them, and they would then see what 
they would do. It was accordingly filed, and a copy served July 7th. 

The company, however, did not transfer the stock even then, but referred us 
to their counsel, Mr. William Fullerton, who thereupon called upon us and 
entered an appearance for them. He insisted that the decree should be more 
full in its directions as to the transfer of the stock, so that it might protect 
the company from any future claims from Mercer or his assigns, and that 
the transfer ought to be to the clerk of the court instead of the marshal. 
Accordingly Mr. Fullerton, after consulting Mr. Daniel Lord, as I was in- 
formed, drew an amended decree. Before it was entered Mr. Fullerton wanted 
the district attorney to pay his counsel fee out of the entire proceeds, as the 
company, he said, objected to paying it, they being only the custodians of 
Mercer's stock, and the matter being of no benefit to them. At this time 
Mr. Smith was in Washington. When he returned, the proposition was laid 



STATEMENT OF MR. ALLEN. 63 

before him ; lie said, he " would not pay one cent out of the share or interest of 
the United States." It was finally proposed and settled by consent of Mr. 
Mudgett, that Mudgett should pay Mr. Fullerton a counsel fee of ten per 
cent, on his half. The amended decree was then examined and signed by 
the judge and filed July 30th. (The original decree had been examined, 
signed and filed in the same way. In both the original and the amended de- 
crees the judge gave the net proceeds to the United States and the informer 
in equal parts.) The stock was transferred by the mining corporation and 
was sold according to law, by Wallace & Co., brokers, appointed by the 
marshal upon Mudgett's suggestion. 

The result, as appears from the records of the court, was as follows : 

Total proceeds, including accumulated dividends, $61,970 16 

Costs and expen.ses, including brokerage and fees and commissions 

of marshal and clerk ' 2,791 89 

$59,178 27 

Moiety of entire net proceeds, $29,589 14 

To the government's share add the costs and fees certified by the 
court to the district attorney, but by him paid into the United 
States treasury, 1,237 87 

Received by the government $30,827 01 

At one of the sales, Mudgett himself purchased $26,605 in amount of the 
stock and gave to the clerk of the court his check for that sum, requesting 
that as he had no money on deposit to meet it, it might not be presented or 
used, but returned to him as so much cash when the final distribution should 
be made. 

He thus arranged with the clerk of the court to receive his distributive 

share in a return to him of his check for $26,605 00 

And in cash, 2,984 13 



$29,589 13 



Mr. Mudgett thus became by purchase the owner of 313 shares of the 
stock. This purchase was made August 5th. On the same day, without 
consultation with me, Mudgett sent a notice or direction to the clerk of the 
court, drawn by him in our office, (as I recollect hearing at the time, and as I 
suppose from its being written on the peculiar kind of brief paper used in our 
office,) during the absence of both Mr. Smith and myself, to take the stock so 
bought by him in my name, in four certificates. Upon ascertaining this, I 
dechned to take it in my name, because I thought that in becoming a stock- 
holder in the company, I might incur some personal liability for assessments 
or otherwise. I spoke to Mr. Smith about it, and he said he would not allow 
it if he were in my jjlace. On the 10th, Mudgett sent me a letter asking that 
I would take the certificates in my name, upon the ground that the company 



64 APPENDIX. 

• 

would be less likely to make trouble, than if they were taken in his name. 
The apprehension of trouble grew out of an intimation of officers in the com- 
pany that on issuing new certificates of this condemned stock, they should 
mark it "confiscated," which Mudgett apprehended would injure its value in 
the market when its resale should be attempted. (This intention the com- 
pany finally abandoned.) 

On my continued refusal to take the stock in my name, Mudgett sent a 
notice to the clerk to have the four certificates before mentioned issued to 
another person, which was done, and the usual blank powers of attorney 
were obtained from the latter and attached to the certificates, so that they 
could pass by mere delivery. 

August 11th, the marshal made to the clerk return of sales. A day or 
two afterwards Mudgett called at our office ; Mudgett and I walked up stairs 
to the clerk's office together. He now, having given his check to the clerk, 
as I remember the circiunstances, took the four certificates of stock, which he 
had become entitled to as purchaser ; but as they were in a third person's 
name, the clerk took my receipt for them, as acting for such third person, in 
accordance with a letter of authority from the latter. We then returned to 
the district attoruej^'s office. Mudgett brought the stock down stairs in his 
hands to Mr. Smith's desk. Three of the certificates were for 78 shares 
each and the fourth was for 79 shares. We suggested that Mr. Smith should 
take the odd share and pay the diffi^rence, which Mr. Smith assented to, and 
gave a check to me for a quarter, and to Mudgett for a half of the estimated 
value of the odd share. Mr. Mudgett retained two certificates and one went 
to me and one to Mr. Smith. The above acts of Mr. Mudgett which I have 
related were done freely, and of his own accord, without any request or in- 
timation whatever. Mr. Mudgett took his leave, cordially expressing satis- 
faction and obligation. 

The letter dated August 3d, in which he states that his act Avas entirely 
voluntary, was set forth by me in full in my testimony before the com- 
mittee. 

It will be observed by what he says in his notice to the clerk, dated Au- 
gust 5th, that he Avas then expecting to go out of town, and that he sup- 
posed the case would be closed during his absence. In view of that he 
signed and left a receipt for his distributive share. The amount was left 
blank, for it was not then known exactly what it would be. The case was 
not closed until his return to the city, so the receipt was never used. 

It was not till August 18th, several days after Mudgett took the stock, 
that the clerk made final and formal distribution and closed the case. On 
that day, Mudgett received a return of his check, which left him entitled to 
$3,984 13, in cash, from which Mr. FuUerton received a fee amounting to 
$3,958 91, being ten per cent, on the informer's share, as had been agreed 
by Mr. Mudgett and Mr. Fullerton as before mentioned. From the trifling 
balance of cash remaining in his hand as paid to him by the clerk, he, of his 
OAvn accord, without any request or suggestion, paid Mr. Smith and myself 
half, coming to our office for the purpose. And he now again acted and 
spoke in a cordial, friendly way. Subsequently to this a Mr. Alexander Ful- 



STATEMENT OP ME. ALLEN. . 65 

lerton, a clerk in the Minnesota Mining Company, claimed that he gave the 
information to Mudgett as his, Fullerton's, attorney at law, and demanded his 
share from Mr. Mudgett. Mr. Mudgett declined to recognize him in any 
way, and FuUerton brought suit to recover what he claimed to he his rights. 
The complaint, containing all the alleged facts in the case, was served, and 
Mr. Mudgett requested us to defend him. 

Upon having an interview with the plaintiff's counsel Mr. Smith said he 
believed the plaintiff had given the information to Mudgett, although upon 
what terms appeared uncertain ; that at all events he ought to be rewarded. 
And we gave him as a matter of equity one third of the stock which Mr. 
Smith and I held. With this Mr. Alexander Fullerton was perfectly satis- 
fied and the suit ended. Mr. Mudgett Avould not do any thing. The balance 
of the stock held by me I sold, and realized upon it about $4,000, and I 
understand Mr. Smith did the same. 

We could see no possible objection to receiving compensation in this case, 
and it was accordingly accepted. J understood at the time that several gen- 
tlemen of official and professional prominence, to whom Mr. Smith spoke, (as 
he had said he intended to,) agreed with him that it was beyond question 
perfectly honorable and proper. I, myself, thought so then and I think so 
now. 

This matter was never regarded by me as a secret, but I talked about it 
on all occasions as freely as of any ordinary transaction. I never knew of any 
other motive that prompted Mr. Mudgett to make the offer, than that which 
actuates any suitor who promises the lawyer who has undertaken his case a 
share of his recovery in the event of success. 

Although the offer was made long after the suit was commenced, and even 
after the judgment was ordered and secured by default, yet a transfer from 
the company of the stock in question was yet to be obtained, and this bid fair 
to need diUgence, management and skill. By the judgment, the informer's 
share was assured to him. He was certain to get it, if the property should 
be obtained. But the judgment would clearly be useless, unless the stock 
could be got from the company. Having voluntarily made the offer in the 
middle of the proceedings, he voluntarily kept it at the close. As he had 
spoken to me of his intention to apply for the appointment of marshal in 
case (as he then expected) there might be a change in that office, and had 
asked me if I would not endeavor to obtain the influence of Mr. Smith here 
and of friends of mine elsewhere, I imagined he might have had some aim 
connected with political favor, and I so stated in my testimony before tho 
congressional committee. But I find Mudgett explains an additional motive 
in his testimony before the same committee. He says, that before the final 
decree of distribution was filed he considered that the decree could have been 
drawn under the act of 1862 alone, and he be deprived of all interest. 

But he says this was not intimated by the district attorney, or by me, or 
by himself, but that being in tliis belief, he thought it was his interest to 
make the offer he did. As a matter of law, Mudgett was wrong in supposing 
that he could be deprived of his interest. The order of condemnation was to 
him and the United States in equal parts, and if the district attorney had 

5 



66 APPmroix. 

neglected to push on the suit or to recognize him in the decree, Mr. Mudgett 
could have gone into court and moved on the case himself and drawn his 
own decree. It seems, therefore, in fact, from his statement, that he made 
the offer that he did, in the fear that something might happen that never 
could happen, and which no one thought of but himself. 

I will add, that the costs and fees allowed the district attorney, received in 
this case, were paid into the United States treasury, and did not go to the 
district attorney, as by a misapprehension stated in the report of the con- 
gressional committee. 

On December 26th, 1863, four months after the Mercer case was closed, 
Mr. Mudgett filed an information against stock in the Bank of the Eepublic 
in this city ; and on the 28th I received from him a letter, dated at the 
custom house, proposing and promising to divide with me his information 
money when it should be received in that case. It came to nothing, for the 
rebel stock supposed to be in the Bank of the Republic was not finally found. 
The letter came unsought and unsuggested by me, or, as I believe, by any 
person, and was INIudgett's own free act, and was written and signed without 
my knowledge of his intention to send it. 

I add to this statement copies of a number of letters and papers, written, 
signed, and sent by Mudgett to me and to the clerk of the court.* 

In the spring of 1864 an unfriendly feeling was exhibited at the custom 
house by some of the oflicers there towards the district attorney, and I was 
told that Mudgett had said that he had to pay to get the Mercer case along. 
As soon as I heard of this, I went down there and asked him what this report 
meant, knowing as I did, that the statement was entirely false. He replied 
in the most emphatic way that it was false ; that he had never said so, and 
could not, because, as I very well knew, his gift v/as perfectly voluntary, and 
he added, that he had a right to do what he was a mind to with his own, and 
if any body meddled with that matter he would give him a piece of his mind. 
This is the substance. 

In October, 1864, one of the congressional committee informed me that 
Mudgett had been before them, but I distinctly imderstood that he had not 
represented the matter as any tiling but a free and voluntary act on his part, 
and a perfectly proper one on ours. I asked to see his statement, but it had 
not been written out from the stenographer's short hand notes, and they were 
not present. I was requested to make my own statement of the case ; but as 
I understood, the matter was treated as of no account, and it was not consid- 
ered necessary for Mr. Smith to be examined. My statement before the com- 
mittee would probably have gone more into detail, and been much fuller and 
more complete if I had seen Mr. Mudgett's. It was, I think, more full as I 
gave it, than it appears in the congressional report, for much is evidently 
omitted. Mr. Smith was not with me the first day. He went over to the 
committee room the second day, and remained 'during my examination of 
that day, and wished to be examined himself, but it was understood that no 
examination of him was called for. This was in October, 1864. Mr. Nelson's 

* See ante, pages 57 to 60. 



STATEMENT OF MR. ALLEW. 



6r 



statement was not taken till March, 18G5, in Washington, and we knew 
nothing of it. Nor did we ever see either statement till afterwards pub- 
lished in the newspapers. 

No intimation of conipsnsation or contribntion to our office was ever 
made to any person who ever filed an information there. From only one be- 
side Mr. Mudgett was any ever recaived by me, or, as I believe, by Mr. 
Smith, and in that case the amount was small. Any person can verify this 
assertion by calling, taking the official list of informations which were num- 
bered as they came in, and inquiring of any or all the persons who filed 
them. 

In April, 1865, after Mr. Smith had held the office of district attorney for a 
term of four years and over, he was succeeded by the late Hon. Daniel S. 
Dickinson, who retained me as assistant district attorney, and I am still in 
the office as such. When Mr. Dickinson was appointed, several confiscation 
suits were pending, all prosecuted under both laws as in the Mercer case. 
Several more confiscation cases were commenced by Mr. Dickinson. As the 
Mercer suit had been found fault with, I requested him to relieve me from 
attending to these cases, and he did so. The questions which had been raised 
as to the two laws, and as to an informer's right to share, were talked over by 
him, and he examined the statutes and books of practice for himself. The 
result was, that in both pending and new cases, he pursued precisely the 
same course which Mr. Smith had taken, used the same blanks for libels and 
decrees which Mr. Smith had drawn, had additional decrees printed in the 
same form, filed a libel in each suit under both laws in the same way, 
drafted and presented to the court, had signed and entered, and filed decrees 
giving the informer half the proceeds, just as was done while Mr. Smith was 
in office. 

This can be seen by referring to the records of the court, the docket of the 
district attorney, and the newspaper notices of law proceedings during the 
time. 

Ethan Allen. 

City and County of New York, ss. 

Ethan Allen, being duly sworn, deposes and says, that he has" read tho 
foregoing statement, and knows the contents thereof, and that the same is 
true to the best of his knowledge, information and belief. , 

Ethan Allek. 

Subscribed and sworn to, this 11th) 
day of June, 1867, before me, j 

[l. s.] a. C. Willmarth, 

Notary PvMie. 



